In the marijuana reform conversation, one of the grandest boogeymen is “Big Marijuana.” Reform advocates, opponents of marijuana legalization, patients, consumers, media, and many others worry openly that the marijuana industry will consolidate into a corporate beast and a bad market actor reminiscent of Big Tobacco companies.

In a paper released earlier this month entitled, “Worry about bad marijuana—not Big Marijuana,” Jonathan Rauch and I engage the likelihood and risks of the emergence of such a corporate entity. Although the paper makes several points, we begin with a discussion of exactly what “Big Marijuana” means. What we find is that the concept is tossed around so frequently, assigned to so many different types of market actors, that it has ultimately lost meaning.

Often, the term is used to describe any large corporate entity or consolidation effort within the marijuana industry. In reality, standard corporate consolidation or the existence of large companies in an industry are basic aspects in capitalism. What’s more there are huge differences between marijuana industry actors today and Big Tobacco companies of the middle of the 20th century—in terms of size, scope, and market power to name a few. It should be expected that an industry that is young, fractured, and rapidly maturing will endure periods of consolidation and in the process, large and successful corporate entities will emerge. One should not assume, however, that such behaviors are sinister, suspect, or intent on engaging in immoral or illegal activities.

Nor should one assume that only large corporate entities can engage in bad behaviors. They surely can, but other market actors may as well. The policy conversation around marijuana industry structure often holds Big Marijuana up as the actor who will bring problems for enforcement, diversion, sale to minors, sale to problem users, etc. The reality is that a marijuana entity of any size can behave in many of those behaviors. The problem with an unending focus on industry structure or corporate size is that policymakers and regulators can give a pass to smaller actors who may engage in the types of behaviors people inside and outside of industry seek to avoid—those same types of behaviors we saw from the tobacco industry.

We argue there is a more sensible, safer step forward that begins with a simple premise. There are certain outcomes that the marijuana industry must avoid, and policy and regulation should preferably ban, but at least disincentivize those outcomes. We mention a few in the paper: antisocial marketing (marketing to children or problem users), regulatory capture, outcomes that hurt medical marijuana patients, and increasing barriers to entry and corporate crowd out—but others like diversion, illegal sales, and more must (and do) concern policy makers. In some cases, certain behaviors are more likely to come from larger corporate entities, but many behaviors can happen, independent of firm size.

There are a variety of ways to avoid some of these outcomes beyond a focus on firm size and corporate consolidation. Some of those options are highlighted by the RAND Corporation’s Drug Policy Research Center. In “Options and Issues Regarding Marijuana Legalization,” the authors argue a shift away from the corporate model—either through the use of non-profit entities or government operation of whole portions of the market (supply, retail, or both) can have real benefit. These approaches can allow regulators greater control over negative market actions and induce incentives focused on public health and good governance, rather than profit maximization. Those arguments are quite convincing, but as states continue to construct medical and recreational marijuana programs using the corporate model, it is important to consider policy approaches within that existing framework.

Thus, we recommend that regulators and policy makers not primarily focus on firm size, corporate consolidation, or the corporatization of the marijuana industry. Instead, they should work to avoid specific outcomes they see as unwanted or bad and pass laws, promulgate regulations, conduct information and education campaigns, and take whatever actions are necessary to stop them in their tracks. At the end of the day, one thing is clear: no one wants “Bad Marijuana” regardless of whether it comes from Big, Small, or Otherwise-Sized Marijuana.

Authors

In the marijuana reform conversation, one of the grandest boogeymen is “Big Marijuana.” Reform advocates, opponents of marijuana legalization, patients, consumers, media, and many others worry openly that the marijuana industry will consolidate into a corporate beast and a bad market actor reminiscent of Big Tobacco companies.

In a paper released earlier this month entitled, “Worry about bad marijuana—not Big Marijuana,” Jonathan Rauch and I engage the likelihood and risks of the emergence of such a corporate entity. Although the paper makes several points, we begin with a discussion of exactly what “Big Marijuana” means. What we find is that the concept is tossed around so frequently, assigned to so many different types of market actors, that it has ultimately lost meaning.

Often, the term is used to describe any large corporate entity or consolidation effort within the marijuana industry. In reality, standard corporate consolidation or the existence of large companies in an industry are basic aspects in capitalism. What’s more there are huge differences between marijuana industry actors today and Big Tobacco companies of the middle of the 20th century—in terms of size, scope, and market power to name a few. It should be expected that an industry that is young, fractured, and rapidly maturing will endure periods of consolidation and in the process, large and successful corporate entities will emerge. One should not assume, however, that such behaviors are sinister, suspect, or intent on engaging in immoral or illegal activities.

Nor should one assume that only large corporate entities can engage in bad behaviors. They surely can, but other market actors may as well. The policy conversation around marijuana industry structure often holds Big Marijuana up as the actor who will bring problems for enforcement, diversion, sale to minors, sale to problem users, etc. The reality is that a marijuana entity of any size can behave in many of those behaviors. The problem with an unending focus on industry structure or corporate size is that policymakers and regulators can give a pass to smaller actors who may engage in the types of behaviors people inside and outside of industry seek to avoid—those same types of behaviors we saw from the tobacco industry.

We argue there is a more sensible, safer step forward that begins with a simple premise. There are certain outcomes that the marijuana industry must avoid, and policy and regulation should preferably ban, but at least disincentivize those outcomes. We mention a few in the paper: antisocial marketing (marketing to children or problem users), regulatory capture, outcomes that hurt medical marijuana patients, and increasing barriers to entry and corporate crowd out—but others like diversion, illegal sales, and more must (and do) concern policy makers. In some cases, certain behaviors are more likely to come from larger corporate entities, but many behaviors can happen, independent of firm size.

There are a variety of ways to avoid some of these outcomes beyond a focus on firm size and corporate consolidation. Some of those options are highlighted by the RAND Corporation’s Drug Policy Research Center. In “Options and Issues Regarding Marijuana Legalization,” the authors argue a shift away from the corporate model—either through the use of non-profit entities or government operation of whole portions of the market (supply, retail, or both) can have real benefit. These approaches can allow regulators greater control over negative market actions and induce incentives focused on public health and good governance, rather than profit maximization. Those arguments are quite convincing, but as states continue to construct medical and recreational marijuana programs using the corporate model, it is important to consider policy approaches within that existing framework.

Thus, we recommend that regulators and policy makers not primarily focus on firm size, corporate consolidation, or the corporatization of the marijuana industry. Instead, they should work to avoid specific outcomes they see as unwanted or bad and pass laws, promulgate regulations, conduct information and education campaigns, and take whatever actions are necessary to stop them in their tracks. At the end of the day, one thing is clear: no one wants “Bad Marijuana” regardless of whether it comes from Big, Small, or Otherwise-Sized Marijuana.

Many critics and proponents of marijuana legalization alike have voiced concerns about the potential emergence of Big Marijuana, a corporate lobby akin to Big Tobacco that recklessly pursues profits and wields sufficient clout to shape regulation to its liking.

Although marijuana remains illegal under federal law, medical and/or recreational marijuana is now legal in more than two dozen states. As the federal government has largely tolerated state legalization, corporate capital and muscle have begun moving in on these new state markets. Such commercialization raises a new set of concerns about how industry dynamics may impact consumer behavior and potentially incur social costs.

In their new paper, “Worry about bad marijuana—not Big Marijuana,” John Hudak and Jonathan Rauch argue against alarmism. In analyzing the likely implications of the corporatization of marijuana, they conclude the following:

The marijuana industry will remain a diverse one even as large corporations emerge. The Big Marijuana rubric is more misleading than helpful as a guide to policy because it oversimplifies and stereotypes what is in reality a continuum of business scales and structures.

The marijuana industry is very unlikely to transform into something that looks like Big Tobacco during its notorious heyday. It is more likely that a commercial and regulatory model would look like the one governing alcohol, which is regulated primarily at the state level, combines mandatory with voluntary measures to police industry conduct, does a credible job of preventing antisocial and abusive commercial behavior, and has proven stable over time and broadly acceptable to the public and the industry.

Intelligently regulated and managed, Big Marijuana can be part of the solution. Corporatization, though not without its hazards, has considerable upsides. It brings advantages in terms of public accountability and regulatory compliance, product safety and reliability, market stability, and business professionalism.

Policy should concern itself with harmful practices, not with industry structure, and it should begin with a presumption of neutrality on issues of corporate size and market structure. Attempts to block corporatization are likely to backfire or fail. For policymakers, the concern should be bad marijuana, not big marijuana.

Downloads

Authors

Many critics and proponents of marijuana legalization alike have voiced concerns about the potential emergence of Big Marijuana, a corporate lobby akin to Big Tobacco that recklessly pursues profits and wields sufficient clout to shape regulation to its liking.

Although marijuana remains illegal under federal law, medical and/or recreational marijuana is now legal in more than two dozen states. As the federal government has largely tolerated state legalization, corporate capital and muscle have begun moving in on these new state markets. Such commercialization raises a new set of concerns about how industry dynamics may impact consumer behavior and potentially incur social costs.

In their new paper, “Worry about bad marijuana—not Big Marijuana,” John Hudak and Jonathan Rauch argue against alarmism. In analyzing the likely implications of the corporatization of marijuana, they conclude the following:

The marijuana industry will remain a diverse one even as large corporations emerge. The Big Marijuana rubric is more misleading than helpful as a guide to policy because it oversimplifies and stereotypes what is in reality a continuum of business scales and structures.

The marijuana industry is very unlikely to transform into something that looks like Big Tobacco during its notorious heyday. It is more likely that a commercial and regulatory model would look like the one governing alcohol, which is regulated primarily at the state level, combines mandatory with voluntary measures to police industry conduct, does a credible job of preventing antisocial and abusive commercial behavior, and has proven stable over time and broadly acceptable to the public and the industry.

Intelligently regulated and managed, Big Marijuana can be part of the solution. Corporatization, though not without its hazards, has considerable upsides. It brings advantages in terms of public accountability and regulatory compliance, product safety and reliability, market stability, and business professionalism.

Policy should concern itself with harmful practices, not with industry structure, and it should begin with a presumption of neutrality on issues of corporate size and market structure. Attempts to block corporatization are likely to backfire or fail. For policymakers, the concern should be bad marijuana, not big marijuana.

Downloads

Authors

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http://www.brookings.edu/research/papers/2016/06/16-marijuana-special-interests-rauch-wallach?rssid=marijuana+legalization{59542A90-5F0F-4F2C-8541-6FC674B321C9}http://webfeeds.brookings.edu/~/159055834/0/brookingsrss/topics/marijuanalegalization~Bootleggers-Baptists-bureaucrats-and-bongs-How-special-interests-will-shape-marijuana-legalizationBootleggers, Baptists, bureaucrats, and bongs: How special interests will shape marijuana legalization

Where there are markets, regulations, and money, special interests and self-serving behavior will not be far away. So argue Philip Wallach and Jonathan Rauch in this new paper that examines how special interests are likely to shape marijuana legalization and regulation in the United States.

Why did legalization of marijuana break through in the face of what had long been overwhelming interest-group resistance? In a post-disruption world, how might key social and bureaucratic actors reorganize and reassert themselves? As legalization ushers in a “new normal” of marijuana-related regulation and lobbying, what kinds of pitfalls and opportunities lie ahead? In this paper, Wallach and Rauch address those questions through the prism of what political economists often call the theory of public choice—the study of how interest groups and bureaucratic incentives influence policy outcomes. Their conclusions include:

For many years, the marijuana-policy debate was dominated by an “iron triangle” of anti-legalization interests: moralists and public-health advocates who believe marijuana use is wrong or harmful; commercial and gray-market interests with stakes in drug treatment and medical marijuana; and law-enforcement and quasi-governmental entities whose budgets and missions are sustained by the war on drugs. Those interests’ combined firepower stunted change even as public support for marijuana prohibition softened.

To make possible the wholesale disruption that has happened with marijuana legalization, public opinion change was necessary, but it was not sufficient. Also required was the disruption of the iron triangle. That was accomplished in the late 2000s through a shrewdly crafted campaign of “asymmetric warfare” that aimed money and argumentation at the incumbent coalition’s weakest points. In particular, reformers shifted the public’s focus from harms of marijuana use to harms of marijuana criminalization.

The rise of commercial marijuana interests and a potentially controversial “marijuana lobby” may impede legalization’s momentum as its opponents change the subject once again, from harms of criminalization to harms of corporate predation.

The present disrupted regulatory environment is unlikely to last. Old prohibitionist interests are discombobulated and new commercial-marijuana interests are still getting organized, giving legalizing states a degree of regulatory freedom which is exceptional but probably not durable. Over time, multiple interests will coalesce and colonize the regulatory process.

Despite widely touted concern that one or more disproportionately powerful players will dominate the regulatory system, regulatory incoherence should be a greater concern than regulatory capture. As policymakers increasingly need to navigate complex and conflicting interest-group politics, the result is at least as likely to be overregulation and misregulation as it is to be systematic underregulation.

Ultimately, Wallach and Rauch conclude that the emerging model of state-level regulation provides valuable insulation against interest-group depredations in the marijuana industry. Even if the federal government eventually legalizes marijuana, they argue, it should leave marijuana regulation primarily to the states.

Downloads

Authors

Where there are markets, regulations, and money, special interests and self-serving behavior will not be far away. So argue Philip Wallach and Jonathan Rauch in this new paper that examines how special interests are likely to shape marijuana legalization and regulation in the United States.

Why did legalization of marijuana break through in the face of what had long been overwhelming interest-group resistance? In a post-disruption world, how might key social and bureaucratic actors reorganize and reassert themselves? As legalization ushers in a “new normal” of marijuana-related regulation and lobbying, what kinds of pitfalls and opportunities lie ahead? In this paper, Wallach and Rauch address those questions through the prism of what political economists often call the theory of public choice—the study of how interest groups and bureaucratic incentives influence policy outcomes. Their conclusions include:

For many years, the marijuana-policy debate was dominated by an “iron triangle” of anti-legalization interests: moralists and public-health advocates who believe marijuana use is wrong or harmful; commercial and gray-market interests with stakes in drug treatment and medical marijuana; and law-enforcement and quasi-governmental entities whose budgets and missions are sustained by the war on drugs. Those interests’ combined firepower stunted change even as public support for marijuana prohibition softened.

To make possible the wholesale disruption that has happened with marijuana legalization, public opinion change was necessary, but it was not sufficient. Also required was the disruption of the iron triangle. That was accomplished in the late 2000s through a shrewdly crafted campaign of “asymmetric warfare” that aimed money and argumentation at the incumbent coalition’s weakest points. In particular, reformers shifted the public’s focus from harms of marijuana use to harms of marijuana criminalization.

The rise of commercial marijuana interests and a potentially controversial “marijuana lobby” may impede legalization’s momentum as its opponents change the subject once again, from harms of criminalization to harms of corporate predation.

The present disrupted regulatory environment is unlikely to last. Old prohibitionist interests are discombobulated and new commercial-marijuana interests are still getting organized, giving legalizing states a degree of regulatory freedom which is exceptional but probably not durable. Over time, multiple interests will coalesce and colonize the regulatory process.

Despite widely touted concern that one or more disproportionately powerful players will dominate the regulatory system, regulatory incoherence should be a greater concern than regulatory capture. As policymakers increasingly need to navigate complex and conflicting interest-group politics, the result is at least as likely to be overregulation and misregulation as it is to be systematic underregulation.

Ultimately, Wallach and Rauch conclude that the emerging model of state-level regulation provides valuable insulation against interest-group depredations in the marijuana industry. Even if the federal government eventually legalizes marijuana, they argue, it should leave marijuana regulation primarily to the states.

Downloads

Authors

]]>
http://www.brookings.edu/events/2016/06/16-big-marijuana-rauch-hudak-wallach?rssid=marijuana+legalization{B9EFFEA9-61A9-4E5D-BD70-8B6522B5E54C}http://webfeeds.brookings.edu/~/159020458/0/brookingsrss/topics/marijuanalegalization~Big-Marijuana-How-corporations-and-lobbies-will-shape-the-legalization-landscapeBig Marijuana: How corporations and lobbies will shape the legalization landscape

Event Information

Four states and D.C. have legalized recreational marijuana, and more may do so this fall. But legalization is just the beginning of policy development. After legalization come commercialization and regulation—processes sure to be influenced by corporations and interest groups. How will lobbying and corporatization affect the structure and regulation of the licit marijuana market? And how should policymakers respond?

On June 16, the Center for Effective Public Management at Brookings released two papers examining these issues. Authors and Brookings Senior Fellows John Hudak, Jonathan Rauch, and Philip Wallach were joined by experts from government, private industry, the non-profit sector, and academia to assess the papers' findings that state-level regulation can help rein in special interests and that big corporations can bring benefits as well as risks.

Event Information

Four states and D.C. have legalized recreational marijuana, and more may do so this fall. But legalization is just the beginning of policy development. After legalization come commercialization and regulation—processes sure to be influenced by corporations and interest groups. How will lobbying and corporatization affect the structure and regulation of the licit marijuana market? And how should policymakers respond?

On June 16, the Center for Effective Public Management at Brookings released two papers examining these issues. Authors and Brookings Senior Fellows John Hudak, Jonathan Rauch, and Philip Wallach were joined by experts from government, private industry, the non-profit sector, and academia to assess the papers' findings that state-level regulation can help rein in special interests and that big corporations can bring benefits as well as risks.

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Transcript

Event Materials

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http://www.brookings.edu/blogs/fixgov/posts/2016/05/27-misconceptions-marijuana-rescheduling-hudak-wallack?rssid=marijuana+legalization{CEA8A5DC-4E46-4321-9C76-D403087EB71F}http://webfeeds.brookings.edu/~/155996382/0/brookingsrss/topics/marijuanalegalization~Clearing-up-misconceptions-about-marijuana-rescheduling-What-it-means-for-existing-state-systemsClearing up misconceptions about marijuana rescheduling: What it means for existing state systems

As marijuana rescheduling has gained traction in Congress and DEA has announced it will rule on a rescheduling this summer, a common concern has emerged in the cannabis reform community and among industry actors. It goes something like this: "If marijuana is moved to Schedule II, the Feds will shut down our state's legal system." The worry is that this administrative change will make marijuana pharmaceuticals legal and thus require all such products to be removed from the market until FDA approval is granted. And of course, clinical drug testing and FDA approval often takes years and hundreds of millions (if not more) dollars in research—something cannabusinesses can't afford and time medical marijuana patients don't have.

Alas, these concerns are overstated. Rescheduling will not shut down the thousands of existing medical (or for that matter recreational) grows, processing facilities and dispensaries that serve people in about half of the U.S. There are a few reasons why this is the case and we will discuss each.

I. The legal authority keeping marijuana enterprises open has nothing to do with scheduling

The scheduling of drugs in U.S. comes from authority vested in the Congress and the executive branch under the Controlled Substances Act of 1970. Under this law, Congress or the relevant federal agencies make determinations about substances based on their medical value, safety for medical treatment, and likelihood of abuse. Under that law, the government assigns a drug to a schedule and has the power to reassign a substance to a different schedule (rescheduling).

The Controlled Substances Act does not authorize state-approved and regulated marijuana enterprises to remain open. In fact, the CSA explicitly outlaws any such enterprise. The authority under which cannabis enterprises continue to operate, despite the substance's "absolute" prohibition under the CSA, is a series of memoranda issued by the U.S. Justice Department. These memos—the Cole and Ogden Memos—allow state-approved, heavily regulated operations to exist, so long as they do not violate certain areas of DOJ’s concern, such as selling to minors or engaging with drug cartels.

These memos are executive actions that assert a Supreme Court-approved power of the presidency: enforcement discretion. Enforcement discretion allows the president and officials in the administration to make choices--priorities--about how and under what circumstances laws will be enforced. The Obama administration has de-prioritized the enforcement of the CSA for marijuana in certain states under certain conditions. Nothing will change with regard to these memos if marijuana were rescheduled.

Furthermore, it is highly unlikely that the FDA would ever approve smoked, whole flower marijuana, even after rescheduling. Instead, cannabis pharmaceuticals will come in the form of tablets or liquids, made by isolating individual cannabinoids or compounds of cannabinoids. Currently, FDA has approved trials for two cannabis based drugs—Sativex and Epidiolex—that do exactly that. Worry exists that since FDA won't allow whole flower marijuana, the existing system of grows and dispensaries will be closed. However, as explained above, FDA is not the entity that allows those grows and dispensaries to remain open and would have no power to reverse the administrative carve out currently allowing marijuana businesses to remain open.

II. If the federal government is ok with a Schedule I substance being sold in the states, they'll be fine with Schedule II.

Currently, the federal government assigns marijuana to Schedule I, meaning that it is perceived to have no medical use and high potential for abuse. No Schedule I substance can be purchased legally in the United States. State marijuana programs, although technically illegal, have been afforded an administrative carve out. Federal deference to state laws have let medical and recreational products move forward in states where marijuana is legal, despite the fact that it is still illegal under the federal schedules.

Movement of marijuana from Schedule I to Schedule II means that the federal government will signal that marijuana is not as dangerous or useless as previously believed. The rescheduling would mean that the substance still has “a high potential for abuse” but that FDA-approved derivatives of the substance are available for prescription with the highest level of restrictions. Rescheduling will slightly relax the bureaucratic hurdles to research on the medical benefits or impacts of cannabis.

That’s it. Rescheduling does not automatically create an FDA-approved marijuana pharmaceutical, and does not create any new penalties for state-level marijuana businesses. Because rescheduling has no impact on the administrative deference that the federal government has given state programs, state-legal businesses would operate in exactly the same gray area post-rescheduling as they do now.

In addition, it would be surprising for the government to designate cannabis as less harmful or dangerous via Schedule II and and subsequently shut down the state systems that were previously tolerated when marijuana was in Schedule I. The optics of such a shift would carry with it political consequences.

III. Marijuana operations stay open because of presidential prerogative, and that isn't changing soon.

As mentioned above, Justice Department memos serve as the legal basis for the continued operation of marijuana enterprises. Rescheduling marijuana does not alter the nature, force, or consequences of those memos. In fact, rescheduling could reinforce the validity of those memos. The Obama administration was bold in issuing memos that ultimately demanded federal officials ignore the CSA with regard to cannabis, particularly given its Schedule I status. If cannabis is moved to Schedule II (or some other schedule), the administration's memos will apply to a drug considered less dangerous than it was previously (see previous section). Thus, rescheduling offers the administration further justification for allowing marijuana enterprises to thrive.

The only situation in which state-legal marijuana enterprises would be threatened would be if the administration both rescinded the existing memos and intensified efforts to shutter those businesses. The president has given no signal that he intends to do this, and has very little interest in doing so. Since 2012 when the last of the memos was issued, Obama's rhetoric on marijuana has grown only more reform oriented. Reversing the memos would be at odds with a very public metamorphosis at the presidential level. In addition, shuttering thousands of marijuana enterprises would put tens of thousands of people out of work, would reduce tax revenues to states, and would harm small business activity in a large swath of the United States. As a presidential election nears, the last thing any president wants to do is damage the economy. An economy-harming reversal on marijuana wouldn't just hurt the industry, but it could harm Hillary Clinton's chances of capturing the White House in November—an outcome Obama would deplore.

Furthermore, it’s unlikely that the next president would bring a change of course. Both Hillary Clinton and Donald Trump have suggested that they are comfortable with the current hands-off/states' rights approach to marijuana policy that the Obama administration has constructed. Thus, even after Obama has left office, his successor has signaled support for the memos that keep the industry afloat. And in the case of Hillary Clinton, she has explicitly argued for rescheduling AND support for legal state-based systems.

IV. A re-commitment to the Controlled Substances Act would be difficult, expensive, and possibly embarrassing

Even in a world in which Obama or his successor felt that in the wake of rescheduling all marijuana should run through FDA trials, the action required to shut down existing operators would be challenging. Part of the reason why the Ogden and Cole Memos were issued was the realization that shutting down significant numbers of marijuana businesses would require tremendous time and federal resources. As time passes, those costs increase and they will likely be even higher in the next administration.

If the president sought to shut down the existing medical and recreational systems and failed, the embarrassment would be significant and the backlash may be even stronger. President Obama will have very little interest in deploying a type of nationwide Pot-S.W.A.T. Team to try to dismantle a large and growing industry. It could undermine support for his administration in key states, and failure would signal weakness in ways that would hurt his legacy and hurt his party's chances of keeping the White House (see above). Similarly, if, early next year, the new president sought to re-criminalize marijuana in legal states, they would likely be accused of squandering federal resources at best. At its worst, the actions would fail and the new president's first hundred days would be marred with a policy failure stemming from gross administrative ineptitude—an image no new president wants.

So, even if a president wanted to pursue a policy of prohibition, the politics are too prohibitive.

V. Public opinion is clear, the dispensaries stay open

Beyond the potential embarrassment of a federal reversal on marijuana enforcement, public opinion on the issue is equally influential. Over 80 percent of Americans approve of medical marijuana, and support for that policy has only grown as more states have approved reform and implemented systems. In many ways, Americans have seen marijuana reform up close and their opinion has changed--to favor it.

The same is true of adult-use recreational marijuana. Over 50 percent of Americans support recreational legalization, with support much higher in many individual states. Support has grown dramatically over the past 25 years. Four states and the District of Columbia have approved recreational marijuana systems, during which time public support has only grown. The American public is not only supportive of marijuana reform but has quite comfortable with it now that they have seen it in action.

Public support creates a significant disincentive for this president or his successor to respond to rescheduling by shutting the whole thing down. Adherents to a variety of ideological commitments, from reforming criminal justice to balancing the budget, find common ground in marijuana reform. The realities of state budgets, economics, political optics, and simple public opinion push President Obama toward reform and away from prohibition, and will push his successor that way as well. Even in the face of marijuana rescheduling, the politics of the issue will keep the dispensaries open and the states left to their own (heavily regulated) devices.

VI. If rescheduling doesn’t close marijuana businesses, does it legalize them?

So you might be wondering; if rescheduling doesn’t impact state-legal markets, what does it do? In short, not much. FDA approval or lack thereof has no bearing on the administration’s enforcement discretion—of this president or any future president. But Schedule II does have implications for the future of medical marijuana research and for that reason an important step in harmonizing federal and state policy. There are fewer obstacles to conducting research on drugs in Schedule II for research than Schedule I. Rescheduling would send a powerful signal to the medical community that the government supports research into legitimate medical uses of cannabis, which is hardly the case currently. Rescheduling also puts administrative pressure on the DEA to relax the monopoly on cannabis available for research, another substantial obstacle. Opening the door to medical research would also be a powerful signal to the millions of Americans who use medical marijuana currently with little or no research-backed information. Recognizing that medical marijuana is a valuable subject for research is not an inconsequential statement for the government, and will eventually help millions of patients and families.

Beyond breaking down research barriers however, rescheduling has no impact on the status of state marijuana programs, and is unlikely to in the future.

VII. The products in state legal markets are very different than FDA-approved products

Rescheduling of marijuana would allow expanded pharmaceutical research into the substance and offer a more convincing foundation for the ultimate approval of cannabis-based pharmaceuticals. However, the marijuana sold on the shelves of a dispensary in Denver will look very different than a pharmaceutical sold at a Walgreens. And we already have evidence of that.

In some ways, there is a benefit to such a system for existing industry actors and patients and consumers who rely on more traditional cannabis products. While big pharma may move in on substances with isolated cannabinoids, running products through FDA trials and eventually putting such products on the shelves of traditional pharmacies, they would have no interest in exploring the types of products currently sold in state medical marijuana systems. Why? Because they know such substances would never be approved. Such a scenario would likely set up a bifurcated system of cannabis products. FDA-approved pharmaceuticals would be available in the nation's drug stores and other cannabis products would be available in DOJ-approved dispensaries. Such policies are not mutually exclusive and the politics may make them the only viable outcome.

Ultimately, substantial amounts of misinformation exist when it comes to drug rescheduling. How it works, who is in charge and what the consequences of such a policy shift consume much conversation, particularly in the marijuana reform community. The confusion is understandable because rescheduling is complicated and has never been applied to a product like marijuana—one being sold pseudo-legally in the states. However, while the policy may be perplexing, the politics around marijuana is not. Rescheduling won’t shut down dispensaries nationwide, threaten the existing marijuana industry’s dynamics, nor create challenges for patient access. In fact, while rescheduling will be seen by many in the reform community and among scientific researchers as a resounding victory, the reality is that, day to day, most people will never notice the difference.

Authors

As marijuana rescheduling has gained traction in Congress and DEA has announced it will rule on a rescheduling this summer, a common concern has emerged in the cannabis reform community and among industry actors. It goes something like this: "If marijuana is moved to Schedule II, the Feds will shut down our state's legal system." The worry is that this administrative change will make marijuana pharmaceuticals legal and thus require all such products to be removed from the market until FDA approval is granted. And of course, clinical drug testing and FDA approval often takes years and hundreds of millions (if not more) dollars in research—something cannabusinesses can't afford and time medical marijuana patients don't have.

Alas, these concerns are overstated. Rescheduling will not shut down the thousands of existing medical (or for that matter recreational) grows, processing facilities and dispensaries that serve people in about half of the U.S. There are a few reasons why this is the case and we will discuss each.

I. The legal authority keeping marijuana enterprises open has nothing to do with scheduling

The scheduling of drugs in U.S. comes from authority vested in the Congress and the executive branch under the Controlled Substances Act of 1970. Under this law, Congress or the relevant federal agencies make determinations about substances based on their medical value, safety for medical treatment, and likelihood of abuse. Under that law, the government assigns a drug to a schedule and has the power to reassign a substance to a different schedule (rescheduling).

The Controlled Substances Act does not authorize state-approved and regulated marijuana enterprises to remain open. In fact, the CSA explicitly outlaws any such enterprise. The authority under which cannabis enterprises continue to operate, despite the substance's "absolute" prohibition under the CSA, is a series of memoranda issued by the U.S. Justice Department. These memos—the Cole and Ogden Memos—allow state-approved, heavily regulated operations to exist, so long as they do not violate certain areas of DOJ’s concern, such as selling to minors or engaging with drug cartels.

These memos are executive actions that assert a Supreme Court-approved power of the presidency: enforcement discretion. Enforcement discretion allows the president and officials in the administration to make choices--priorities--about how and under what circumstances laws will be enforced. The Obama administration has de-prioritized the enforcement of the CSA for marijuana in certain states under certain conditions. Nothing will change with regard to these memos if marijuana were rescheduled.

Furthermore, it is highly unlikely that the FDA would ever approve smoked, whole flower marijuana, even after rescheduling. Instead, cannabis pharmaceuticals will come in the form of tablets or liquids, made by isolating individual cannabinoids or compounds of cannabinoids. Currently, FDA has approved trials for two cannabis based drugs—Sativex and Epidiolex—that do exactly that. Worry exists that since FDA won't allow whole flower marijuana, the existing system of grows and dispensaries will be closed. However, as explained above, FDA is not the entity that allows those grows and dispensaries to remain open and would have no power to reverse the administrative carve out currently allowing marijuana businesses to remain open.

II. If the federal government is ok with a Schedule I substance being sold in the states, they'll be fine with Schedule II.

Currently, the federal government assigns marijuana to Schedule I, meaning that it is perceived to have no medical use and high potential for abuse. No Schedule I substance can be purchased legally in the United States. State marijuana programs, although technically illegal, have been afforded an administrative carve out. Federal deference to state laws have let medical and recreational products move forward in states where marijuana is legal, despite the fact that it is still illegal under the federal schedules.

Movement of marijuana from Schedule I to Schedule II means that the federal government will signal that marijuana is not as dangerous or useless as previously believed. The rescheduling would mean that the substance still has “a high potential for abuse” but that FDA-approved derivatives of the substance are available for prescription with the highest level of restrictions. Rescheduling will slightly relax the bureaucratic hurdles to research on the medical benefits or impacts of cannabis.

That’s it. Rescheduling does not automatically create an FDA-approved marijuana pharmaceutical, and does not create any new penalties for state-level marijuana businesses. Because rescheduling has no impact on the administrative deference that the federal government has given state programs, state-legal businesses would operate in exactly the same gray area post-rescheduling as they do now.

In addition, it would be surprising for the government to designate cannabis as less harmful or dangerous via Schedule II and and subsequently shut down the state systems that were previously tolerated when marijuana was in Schedule I. The optics of such a shift would carry with it political consequences.

III. Marijuana operations stay open because of presidential prerogative, and that isn't changing soon.

As mentioned above, Justice Department memos serve as the legal basis for the continued operation of marijuana enterprises. Rescheduling marijuana does not alter the nature, force, or consequences of those memos. In fact, rescheduling could reinforce the validity of those memos. The Obama administration was bold in issuing memos that ultimately demanded federal officials ignore the CSA with regard to cannabis, particularly given its Schedule I status. If cannabis is moved to Schedule II (or some other schedule), the administration's memos will apply to a drug considered less dangerous than it was previously (see previous section). Thus, rescheduling offers the administration further justification for allowing marijuana enterprises to thrive.

The only situation in which state-legal marijuana enterprises would be threatened would be if the administration both rescinded the existing memos and intensified efforts to shutter those businesses. The president has given no signal that he intends to do this, and has very little interest in doing so. Since 2012 when the last of the memos was issued, Obama's rhetoric on marijuana has grown only more reform oriented. Reversing the memos would be at odds with a very public metamorphosis at the presidential level. In addition, shuttering thousands of marijuana enterprises would put tens of thousands of people out of work, would reduce tax revenues to states, and would harm small business activity in a large swath of the United States. As a presidential election nears, the last thing any president wants to do is damage the economy. An economy-harming reversal on marijuana wouldn't just hurt the industry, but it could harm Hillary Clinton's chances of capturing the White House in November—an outcome Obama would deplore.

Furthermore, it’s unlikely that the next president would bring a change of course. Both Hillary Clinton and Donald Trump have suggested that they are comfortable with the current hands-off/states' rights approach to marijuana policy that the Obama administration has constructed. Thus, even after Obama has left office, his successor has signaled support for the memos that keep the industry afloat. And in the case of Hillary Clinton, she has explicitly argued for rescheduling AND support for legal state-based systems.

IV. A re-commitment to the Controlled Substances Act would be difficult, expensive, and possibly embarrassing

Even in a world in which Obama or his successor felt that in the wake of rescheduling all marijuana should run through FDA trials, the action required to shut down existing operators would be challenging. Part of the reason why the Ogden and Cole Memos were issued was the realization that shutting down significant numbers of marijuana businesses would require tremendous time and federal resources. As time passes, those costs increase and they will likely be even higher in the next administration.

If the president sought to shut down the existing medical and recreational systems and failed, the embarrassment would be significant and the backlash may be even stronger. President Obama will have very little interest in deploying a type of nationwide Pot-S.W.A.T. Team to try to dismantle a large and growing industry. It could undermine support for his administration in key states, and failure would signal weakness in ways that would hurt his legacy and hurt his party's chances of keeping the White House (see above). Similarly, if, early next year, the new president sought to re-criminalize marijuana in legal states, they would likely be accused of squandering federal resources at best. At its worst, the actions would fail and the new president's first hundred days would be marred with a policy failure stemming from gross administrative ineptitude—an image no new president wants.

So, even if a president wanted to pursue a policy of prohibition, the politics are too prohibitive.

V. Public opinion is clear, the dispensaries stay open

Beyond the potential embarrassment of a federal reversal on marijuana enforcement, public opinion on the issue is equally influential. Over 80 percent of Americans approve of medical marijuana, and support for that policy has only grown as more states have approved reform and implemented systems. In many ways, Americans have seen marijuana reform up close and their opinion has changed--to favor it.

The same is true of adult-use recreational marijuana. Over 50 percent of Americans support recreational legalization, with support much higher in many individual states. Support has grown dramatically over the past 25 years. Four states and the District of Columbia have approved recreational marijuana systems, during which time public support has only grown. The American public is not only supportive of marijuana reform but has quite comfortable with it now that they have seen it in action.

Public support creates a significant disincentive for this president or his successor to respond to rescheduling by shutting the whole thing down. Adherents to a variety of ideological commitments, from reforming criminal justice to balancing the budget, find common ground in marijuana reform. The realities of state budgets, economics, political optics, and simple public opinion push President Obama toward reform and away from prohibition, and will push his successor that way as well. Even in the face of marijuana rescheduling, the politics of the issue will keep the dispensaries open and the states left to their own (heavily regulated) devices.

VI. If rescheduling doesn’t close marijuana businesses, does it legalize them?

So you might be wondering; if rescheduling doesn’t impact state-legal markets, what does it do? In short, not much. FDA approval or lack thereof has no bearing on the administration’s enforcement discretion—of this president or any future president. But Schedule II does have implications for the future of medical marijuana research and for that reason an important step in harmonizing federal and state policy. There are fewer obstacles to conducting research on drugs in Schedule II for research than Schedule I. Rescheduling would send a powerful signal to the medical community that the government supports research into legitimate medical uses of cannabis, which is hardly the case currently. Rescheduling also puts administrative pressure on the DEA to relax the monopoly on cannabis available for research, another substantial obstacle. Opening the door to medical research would also be a powerful signal to the millions of Americans who use medical marijuana currently with little or no research-backed information. Recognizing that medical marijuana is a valuable subject for research is not an inconsequential statement for the government, and will eventually help millions of patients and families.

Beyond breaking down research barriers however, rescheduling has no impact on the status of state marijuana programs, and is unlikely to in the future.

VII. The products in state legal markets are very different than FDA-approved products

Rescheduling of marijuana would allow expanded pharmaceutical research into the substance and offer a more convincing foundation for the ultimate approval of cannabis-based pharmaceuticals. However, the marijuana sold on the shelves of a dispensary in Denver will look very different than a pharmaceutical sold at a Walgreens. And we already have evidence of that.

In some ways, there is a benefit to such a system for existing industry actors and patients and consumers who rely on more traditional cannabis products. While big pharma may move in on substances with isolated cannabinoids, running products through FDA trials and eventually putting such products on the shelves of traditional pharmacies, they would have no interest in exploring the types of products currently sold in state medical marijuana systems. Why? Because they know such substances would never be approved. Such a scenario would likely set up a bifurcated system of cannabis products. FDA-approved pharmaceuticals would be available in the nation's drug stores and other cannabis products would be available in DOJ-approved dispensaries. Such policies are not mutually exclusive and the politics may make them the only viable outcome.

Ultimately, substantial amounts of misinformation exist when it comes to drug rescheduling. How it works, who is in charge and what the consequences of such a policy shift consume much conversation, particularly in the marijuana reform community. The confusion is understandable because rescheduling is complicated and has never been applied to a product like marijuana—one being sold pseudo-legally in the states. However, while the policy may be perplexing, the politics around marijuana is not. Rescheduling won’t shut down dispensaries nationwide, threaten the existing marijuana industry’s dynamics, nor create challenges for patient access. In fact, while rescheduling will be seen by many in the reform community and among scientific researchers as a resounding victory, the reality is that, day to day, most people will never notice the difference.

Eight months from today one of you will be inaugurated the 45th President of the United States. There is much to think about between now and then, but one issue with a penchant for falling between the cracks is marijuana policy. Marijuana policy is no longer just a punchline, reserved for the attention of activists. Marijuana policy will be a serious part of the next administration’s domestic policy, and it is critical that you create a strategy accordingly.

Both of you have suggested you are open to reforms or, at a minimum, to let states operate as they wish. However, a laissez-faire approach to cannabis is a dangerous stance that creates a bevy of policy problems at the federal, state and local levels. There is tremendous complexity involved in creating a uniform and consistent policy strategy. Marijuana will impact almost every corner of your administration—some obvious, some less so. To get it right—that is to make sure that your administration advances your policy goals—there are seven key steps to take.

1. When vetting possible appointees, ask them about cannabis

It will be shocking how many political appointees deal with marijuana policy. I will not provide an exhaustive review of every position; instead, I will focus on key appointees who have tremendous influence on this issue. These officials, in previous administrations, either worked in lockstep to advance Drug War prohibition or worked in scattered ways that simultaneously advanced reform and criminalization. As you select the right individuals for such posts, understanding their views on and knowledge of marijuana policy is essential to any effort your administration may take in this area.

First, and most obviously, your choice for drug czar—the head of the Office of National Drug Control Policy—will have a substantial impact on marijuana in the U.S. As both a White House official and a policy coordinator, this person will have reach far beyond his or her office, and in the past, the drug czar has been among the most hardened soldiers in the War on Drugs. If you want to pursue marijuana or other drug policy reform during your tenure as president, this individual can help or hinder those efforts.

Next, some of your top law enforcement and related officials play huge roles in how drug policy and drug laws are executed. They include the Attorney General, the FBI Director, and the DEA Administrator. The choices these officials make with regard to criminal investigations will affect states that have opted for marijuana reform. In particular, the Attorney General’s oversight over United States Attorneys also affects marijuana businesses, patients, and consumers in the states. The DEA chief also plays a central role in any rescheduling petition and understanding that appointee’s stance on marijuana rescheduling (and policy generally) is essential.

Beyond law enforcement, there is a financial aspect to marijuana policy that the next president must address. States, businesses, and consumers continuously experience the consequences of the marijuana industry’s lack of access to banking services and mainstream business tax treatment. It creates security risks and market uncertainties that can be damning for the industry and individuals. The Treasury Secretary, the IRS Commissioner, and your future pick for Federal Reserve Chair all have the opportunity to advance sound reforms and more permanent solutions to a public policy problem that is not going away.

Finally, it is important to remember that science is the key to understanding marijuana. Both of you have suggested you want expanded scientific research into cannabis. The best way to achieve that end is to talk directly with prospective appointees for HHS Secretary and the heads of FDA and NIDA. These officials are central to advancing medical and scientific research in all areas, including marijuana, and the FDA and HHS chiefs play a role in rescheduling petitions. Their positions on a variety of public health policy will be important for your administration and marijuana should be part of those conversations.

2. Talk to Congress about marijuana

Congress isn’t new to the marijuana game. The legislative branch has introduced countless pieces of legislation, and provides ideas and leadership on this issue—across both parties. Whether you are focused on marijuana policy specifically or drug policy more broadly, you will have plenty of resources on Capitol Hill. Marijuana reform, in particular, is a bipartisan issue that you can use in the first 100 days (or more) to build bridges and foster relationships with legislators on both sides of the aisle. You will find numerous members of the House and Senate ready to engage with you on this issue, despite their opposition to you on many others. Thus far, successful marijuana reform efforts in Congress have been narrow and few, and presidential leadership can advance broader and more sustained reform.

You can bring new ideas to the table on how best to deal with this issue, but it is important to remember that your drug policy does not have be entirely new or original. There is plenty of ready-to-go legislation in the works (and there will be in the new Congress as well).

3. Talk to states that passed marijuana reform

Governors, state regulators, state legislators, mayors, and other officials face serious marijuana policy challenges every day. Yes, some of those challenges exist because of state-specific issues, policy flaws, or enforcement problems. Though, many—if not most—of the problems facing states exist not because of the state’s own mishaps but because federal policy is so broken. Engaging with partners in state government will offer your administration a comprehensive and detailed understanding of both the extent of those problems and how federal policies can provide solutions. The creation of a federal-state marijuana policy working group would be an effective first step in putting those policy needs into focus and opening communication among all levels of government.

4. Talk to cannabis businesses, patients, consumers, and activists

Hundreds of thousands of people across the U.S. engage with the marijuana industry every year, whether they are business owners, employees, patients or customers. They represent a nontrivial segment of the population; yet, they remain largely voiceless when it comes to federal policy. Interest groups and advocates are only heard in some legislative offices, and in previous administrations it was hard to be taken seriously in the executive branch. Cannabis remains taboo to elected officials even as public opinion rapidly transforms. Your administration has the opportunity to change that, elevating this issue to the level of significance it deserves. There does not necessarily have to be an endorsement of marijuana use; but the next administration must endorse marijuana as a policy area that deserves presidential attention, as more than half of Americans lives in states that have passed marijuana reform.

One way to elevate the conversation and signal a presidential commitment to better policy is convening a White House Summit on National Cannabis Policy. This summit would be the first of its kind, and would reflect a simple reality: there is no policy in the U.S. that affects so many people and yet has garnered so little presidential attention. You will show the public that you take seriously the need to address the issue in an open, honest, and historic way. Some of what you hear from those you convene will be self-serving (that’s likely true of any presidential meeting with any stakeholder on any issue), but the summit will provide you a stay-at-home listening tour that offers a first-hand look at the needs, worries, challenges, and the landscape these people face each day.

5. Talk to marijuana reform opponents

Hearing from all sides of the marijuana issue is important. Engaging with reform opponents will be an important part of the conversation. You will hear end-of-world hyperbole, for sure. But you will also hear from well-meaning activists who offer legitimate concerns about what the future of this policy will mean. They will also echo some of the concerns—legitimate or otherwise—that constituents will have about marijuana reform. Reflecting on those concerns—youth use, accidental ingestion, product safety, DUID, etc.—will help design policies that effectively meet public expectations. One of the most successful aspects of the Colorado recreational legalization program was their reliance on a working group model to prepare the state for implementation. The working groups drew from a diverse set of stakeholders on all sides of the issue and offered the state a varied stream of information. Doing the same at the presidential level is absolutely essential.

6. Talk to scientists studying (or trying to study) cannabis

Science is an integral part of the cannabis conversation, and your administration should commit to getting the best science to answer the most important questions. While plenty of studies have been completed on the topic, much more can and should be done. The first step is to understand how federal policy limits scientific inquiry into marijuana. The medical and scientific system is broken when it comes to cannabis, and your administration has the opportunity to work with the scientific community to fix it. The desire for better science on this issue is uncontroversial. The most ardent drug warrior, convinced that marijuana is a threat to society, should be ready for science to support his view. The most passionate reform advocate should want science to confirm her views about the efficacy of cannabis and individual cannabinoids. You should pursue scientific reform at full speed and make sure your administration does not let government come between scientists and their research.

7. Think about your marijuana legacy

Public opinion on marijuana policy has changed rapidly over the past 20 years. Huge majorities of Americans nationally and at the state-level support medical marijuana reform, and consistent majorities support recreational legalization nationally. Since 1996, 24 states and DC have embraced medical marijuana reform. Since 2012, four states and DC have approved recreational reform. On Election Day, voters won’t simply pull the Trump or Clinton lever for president. Voters in several additional states will consider ballot measures about medical and recreational legalization.

The nation is changing its views on cannabis, and reform is not a flash in the pan, but a certainty in the future of American public policy. Your administration has the opportunity to initiate a sensible, safe, effective, and robust reform that reflects the policy changes in the states and a federal government ready to facilitate a working system. You can help mold the future of this policy, or you can be a bystander to history, remembered more for being a roadblock than a transformational policy champion. Ten years ago it would have been toxic to engage marijuana policy in this way, but as America changes its mind on cannabis, it may be even more toxic to stand by and do nothing about it.

Authors

Eight months from today one of you will be inaugurated the 45th President of the United States. There is much to think about between now and then, but one issue with a penchant for falling between the cracks is marijuana policy. Marijuana policy is no longer just a punchline, reserved for the attention of activists. Marijuana policy will be a serious part of the next administration’s domestic policy, and it is critical that you create a strategy accordingly.

Both of you have suggested you are open to reforms or, at a minimum, to let states operate as they wish. However, a laissez-faire approach to cannabis is a dangerous stance that creates a bevy of policy problems at the federal, state and local levels. There is tremendous complexity involved in creating a uniform and consistent policy strategy. Marijuana will impact almost every corner of your administration—some obvious, some less so. To get it right—that is to make sure that your administration advances your policy goals—there are seven key steps to take.

1. When vetting possible appointees, ask them about cannabis

It will be shocking how many political appointees deal with marijuana policy. I will not provide an exhaustive review of every position; instead, I will focus on key appointees who have tremendous influence on this issue. These officials, in previous administrations, either worked in lockstep to advance Drug War prohibition or worked in scattered ways that simultaneously advanced reform and criminalization. As you select the right individuals for such posts, understanding their views on and knowledge of marijuana policy is essential to any effort your administration may take in this area.

First, and most obviously, your choice for drug czar—the head of the Office of National Drug Control Policy—will have a substantial impact on marijuana in the U.S. As both a White House official and a policy coordinator, this person will have reach far beyond his or her office, and in the past, the drug czar has been among the most hardened soldiers in the War on Drugs. If you want to pursue marijuana or other drug policy reform during your tenure as president, this individual can help or hinder those efforts.

Next, some of your top law enforcement and related officials play huge roles in how drug policy and drug laws are executed. They include the Attorney General, the FBI Director, and the DEA Administrator. The choices these officials make with regard to criminal investigations will affect states that have opted for marijuana reform. In particular, the Attorney General’s oversight over United States Attorneys also affects marijuana businesses, patients, and consumers in the states. The DEA chief also plays a central role in any rescheduling petition and understanding that appointee’s stance on marijuana rescheduling (and policy generally) is essential.

Beyond law enforcement, there is a financial aspect to marijuana policy that the next president must address. States, businesses, and consumers continuously experience the consequences of the marijuana industry’s lack of access to banking services and mainstream business tax treatment. It creates security risks and market uncertainties that can be damning for the industry and individuals. The Treasury Secretary, the IRS Commissioner, and your future pick for Federal Reserve Chair all have the opportunity to advance sound reforms and more permanent solutions to a public policy problem that is not going away.

Finally, it is important to remember that science is the key to understanding marijuana. Both of you have suggested you want expanded scientific research into cannabis. The best way to achieve that end is to talk directly with prospective appointees for HHS Secretary and the heads of FDA and NIDA. These officials are central to advancing medical and scientific research in all areas, including marijuana, and the FDA and HHS chiefs play a role in rescheduling petitions. Their positions on a variety of public health policy will be important for your administration and marijuana should be part of those conversations.

2. Talk to Congress about marijuana

Congress isn’t new to the marijuana game. The legislative branch has introduced countless pieces of legislation, and provides ideas and leadership on this issue—across both parties. Whether you are focused on marijuana policy specifically or drug policy more broadly, you will have plenty of resources on Capitol Hill. Marijuana reform, in particular, is a bipartisan issue that you can use in the first 100 days (or more) to build bridges and foster relationships with legislators on both sides of the aisle. You will find numerous members of the House and Senate ready to engage with you on this issue, despite their opposition to you on many others. Thus far, successful marijuana reform efforts in Congress have been narrow and few, and presidential leadership can advance broader and more sustained reform.

You can bring new ideas to the table on how best to deal with this issue, but it is important to remember that your drug policy does not have be entirely new or original. There is plenty of ready-to-go legislation in the works (and there will be in the new Congress as well).

3. Talk to states that passed marijuana reform

Governors, state regulators, state legislators, mayors, and other officials face serious marijuana policy challenges every day. Yes, some of those challenges exist because of state-specific issues, policy flaws, or enforcement problems. Though, many—if not most—of the problems facing states exist not because of the state’s own mishaps but because federal policy is so broken. Engaging with partners in state government will offer your administration a comprehensive and detailed understanding of both the extent of those problems and how federal policies can provide solutions. The creation of a federal-state marijuana policy working group would be an effective first step in putting those policy needs into focus and opening communication among all levels of government.

4. Talk to cannabis businesses, patients, consumers, and activists

Hundreds of thousands of people across the U.S. engage with the marijuana industry every year, whether they are business owners, employees, patients or customers. They represent a nontrivial segment of the population; yet, they remain largely voiceless when it comes to federal policy. Interest groups and advocates are only heard in some legislative offices, and in previous administrations it was hard to be taken seriously in the executive branch. Cannabis remains taboo to elected officials even as public opinion rapidly transforms. Your administration has the opportunity to change that, elevating this issue to the level of significance it deserves. There does not necessarily have to be an endorsement of marijuana use; but the next administration must endorse marijuana as a policy area that deserves presidential attention, as more than half of Americans lives in states that have passed marijuana reform.

One way to elevate the conversation and signal a presidential commitment to better policy is convening a White House Summit on National Cannabis Policy. This summit would be the first of its kind, and would reflect a simple reality: there is no policy in the U.S. that affects so many people and yet has garnered so little presidential attention. You will show the public that you take seriously the need to address the issue in an open, honest, and historic way. Some of what you hear from those you convene will be self-serving (that’s likely true of any presidential meeting with any stakeholder on any issue), but the summit will provide you a stay-at-home listening tour that offers a first-hand look at the needs, worries, challenges, and the landscape these people face each day.

5. Talk to marijuana reform opponents

Hearing from all sides of the marijuana issue is important. Engaging with reform opponents will be an important part of the conversation. You will hear end-of-world hyperbole, for sure. But you will also hear from well-meaning activists who offer legitimate concerns about what the future of this policy will mean. They will also echo some of the concerns—legitimate or otherwise—that constituents will have about marijuana reform. Reflecting on those concerns—youth use, accidental ingestion, product safety, DUID, etc.—will help design policies that effectively meet public expectations. One of the most successful aspects of the Colorado recreational legalization program was their reliance on a working group model to prepare the state for implementation. The working groups drew from a diverse set of stakeholders on all sides of the issue and offered the state a varied stream of information. Doing the same at the presidential level is absolutely essential.

6. Talk to scientists studying (or trying to study) cannabis

Science is an integral part of the cannabis conversation, and your administration should commit to getting the best science to answer the most important questions. While plenty of studies have been completed on the topic, much more can and should be done. The first step is to understand how federal policy limits scientific inquiry into marijuana. The medical and scientific system is broken when it comes to cannabis, and your administration has the opportunity to work with the scientific community to fix it. The desire for better science on this issue is uncontroversial. The most ardent drug warrior, convinced that marijuana is a threat to society, should be ready for science to support his view. The most passionate reform advocate should want science to confirm her views about the efficacy of cannabis and individual cannabinoids. You should pursue scientific reform at full speed and make sure your administration does not let government come between scientists and their research.

7. Think about your marijuana legacy

Public opinion on marijuana policy has changed rapidly over the past 20 years. Huge majorities of Americans nationally and at the state-level support medical marijuana reform, and consistent majorities support recreational legalization nationally. Since 1996, 24 states and DC have embraced medical marijuana reform. Since 2012, four states and DC have approved recreational reform. On Election Day, voters won’t simply pull the Trump or Clinton lever for president. Voters in several additional states will consider ballot measures about medical and recreational legalization.

The nation is changing its views on cannabis, and reform is not a flash in the pan, but a certainty in the future of American public policy. Your administration has the opportunity to initiate a sensible, safe, effective, and robust reform that reflects the policy changes in the states and a federal government ready to facilitate a working system. You can help mold the future of this policy, or you can be a bystander to history, remembered more for being a roadblock than a transformational policy champion. Ten years ago it would have been toxic to engage marijuana policy in this way, but as America changes its mind on cannabis, it may be even more toxic to stand by and do nothing about it.

April 20th serves as the highest of High Holidays for the marijuana movement. This year comes, once again, with rapid policy changes around medical and recreational marijuana. Several states will vote on recreational or medical marijuana initiatives this fall, including Massachusetts, Maine, Nevada, California, Florida, Arkansas and possibly others. Legislatures in Vermont and Rhode Island are considering legalization legislation currently. On Sunday, Gov. Wolf (D-PA) signed into law the nation’s 25th medical marijuana program, and this week, the United Nations is holding a special session on drug policy.

With policy transforming at a dizzying pace, it is important to remember that attention to some critical issues can often get lost in the process. Focusing our attention on some of these issues is as important as debates about ballot initiatives, treaty obligations, and state regulations. To do this, I asked some of the top minds in the drug policy world to write a brief response to a basic question:

What is the most important aspect of marijuana policy that is receiving little or no attention, and why is it important?

A diverse group of scholars have helped me answer this question, and some of their responses may surprise you. After reading their commentary, I encourage you to continue the conversation on social media, tweeting to me @JohnJHudak using hashtag #420policy.

How lawsuits may improve cannabis safety

It is important not to overlook the potential role that products liability litigation will play in shaping the development of the cannabis industry. In the booming business of legal cannabis, consumers demand quality, safety, and accountability from producers, and there has already been one, albeit unsuccessful, products liability class action filed on behalf of consumers who purchased marijuana treated with harmful pesticides. Companies that engage in irresponsible, deceptive, and misleading business practices will exacerbate existing concerns about the safety and legitimacy of the cannabis industry. On the bright side, it is also possible that products liability litigation will magnify consumer protection concerns, thus putting greater pressure on lawmakers to enact policy reforms that enable federal regulation of the industry. Products liability litigation will illuminate potential dangers associated with the use of novel, largely untested products continuously cropping up in the budding industry. Several years ago, any attorney brazen enough to file a class action claim on behalf of cannabis consumers duped by their dealer would face ridicule, and possibly even disbarment. The fact that products liability litigation is becoming a greater reality in the cannabis industry says a lot about how far the industry has come in terms of gaining legitimacy.

Third-year Law Student, Vanderbilt University. Research Assistant to Professor Robert Mikos, working on a new Marijuana Law and Policy casebook.@LegallyBurns

Cannabis consumption: The ‘who’ and ‘how much’

People do not realize the extent to which marijuana consumption is concentrated amongst the minority of heaviest users. The top 20% of users consume 80% of the marijuana. Also, while the typical past-year user only used once a week, the typical gram of marijuana is consumed by someone who uses every single day.

This skew masks the very great increases in use. The number of past-year marijuana users has grown, but modestly. However, the number who self-report using every day is seven times greater now than it was in 1992. Six times as many Americans report using alcohol in the past-month as report using marijuana, but in terms of daily users the ratio is now below two to one (15 million daily alcohol users vs. 8 million daily marijuana users).

The skew also distorts perceptions of marijuana’s dependence liability. Only about one in three who have tried marijuana went on to use on 100 or more occasions. Tobacco researchers often do not count people as “ever smokers” unless they have used at least that often. If we adopted that definition for marijuana, then the lifetime risk of dependence would suddenly swell from 9-15% of those who have ever tried to 27-45% of those who ever used marijuana on a recurring basis.

Cannabis as medicine for pain and addiction

America loves its opiates, consuming 80% of the world’s supply of prescription pain medications like Oxycontin and Vicodin. But it's a deadly affair, with over 25,000 overdose deaths in 2014, and, according to the CDC, over a quarter million deaths since 2001.

Cannabis has a long history of use as a pain medication, and could be a boon to the field of palliative medicine. Several studies show encouraging evidence that chronic pain patients who are dependent on daily high-dose opiates could taper to lower and safer doses, or wean off completely, using medicinal cannabis. And anecdotes are amassing from clinicians and patients from California to Maine that cannabis is helpful in moderating addiction to opiates, crack cocaine, and alcohol. Every day, drug users die of overdoses that prescribed cannabis could prevent.

Meanwhile, the recent opiate epidemic has killed more Americans than automobile accidents, handguns, and all of our wars since Vietnam. Ironically, the DEA has allowed a 39-fold increase in the production of opiate-based painkillers over the past two decades. There has never been a more evident need to close the “hypocrisy gap” between an ancient herbal medicine and these legal, deadly, and over-marketed opiates.

The positive impact of medical cannabis on addiction treatment and overdose prevention is already evident. According to a 2014 article in Journal of the American Medical Association, the 23 states and Washington DC that have already passed medical marijuana laws have significantly lower rates of opiate related overdose deaths (as much as 40% between 1999-2010). This is a dramatic validation of the use of cannabis as a low risk substitute for, or adjunct to, prescription opiate pain medications.

With the increasing number of people losing their lives from opiate overdose, we can’t let the residual stigma that still attaches to marijuana (and it use as an effective medicine) prevent progress in ending this deadly epidemic.

Research Professor and Director of the Academy for Public Health and Criminal Justice, John Jay College of Criminal Justice, City University of NY@JohnJayCollege

Big Pharma’s possible response to rescheduling

I think an underappreciated worry is the damage that rescheduling marijuana could do the existing industry at this point. If the Obama administration were to place marijuana in Schedule II, say, but to repeal the Cole Memo, things would be devastating for everyone doing business in the states as well as for patients and caregivers operating in both medical and recreational states. We don't allow people to make their own controlled substances, to sell or produce them without a prescription, or to use them in a recreational way and that model would be decimated. (Without the repeal of the Cole memo, we might have the unusual situation where recreational marijuana is ignored as now, but medical is funneled into a pharmaceutical model.) If the Obama administration is serious, then, about treating marijuana as medicine - a goal long held by much of the law reform movement - it could ironically have the effect of reversing facts on the ground rather than driving them.

Vicente Sederberg Professor of Marijuana Law and Policy, Sturm College of Law, University of Denver@ProfSamKamin

It would be wise to consider middle-ground options

Much of the cannabis debate in the United States focuses on two options: Prohibition or the “regulate marijuana like alcohol” approach. This is frustrating. Since 20% of cannabis users—your daily and near-daily users—account for 80% of total cannabis consumption, for-profit companies have strong incentives to create and maintain a large stock of heavy users. I also expect that over time the for-profit industry and its lobbyists will fight against regulation and taxation.

Fortunately, for jurisdictions contemplating alternatives to prohibiting cannabis supply, there are a number of middle-ground options ranging from home production to a government monopoly to a non-profit/for-benefit model.

Since no one knows how legalization is going to play out, I wish there was more discussion about taking an incremental approach to cannabis reform. Jumping from prohibition to a for-profit model is a risky approach that will be very difficult to reverse. It seems reasonable that cautious jurisdictions would explore middle-ground options and see how they work before committing to commercialization based on the U.S. alcohol model. Indeed, jurisdictions could pass a middle-ground option with a sunset clause which would give them the opportunity after a set amount of time to pass a law to either continue with that alternative or try something else.

Cannabis policy: reform and race

What has been the actual effect of marijuana reforms on racial disparities in the criminal justice system? Racial minorities are arrested and imprisoned at higher rates than are whites, and these disparities are commonly attributed at least in part to the nation’s strict drug laws. Because marijuana is involved in a large share of criminal cases, many proponents of marijuana reform have suggested that legalizing the drug will lessen racial disparities.

But what has actually happened in the wake of marijuana reforms? Have reforms reduced the total number of people being arrested or imprisoned? And more to the point, have reforms narrowed the racial disparities in arrest and imprisonment rates? It is possible, after all, that police have found other crimes to charge now that they can no longer arrest individuals for (some) marijuana offenses—there is certainly no shortage of petty to serious offenses that remain on the law books and which are commonly violated. In other words, marijuana reforms may do no more than alter the names of the crimes being cited for arrest and imprisonment, but may not necessarily reduce the overall number of arrests and imprisonments. It's a gloomy thought, I know, but it may prove naïve to expect marijuana legalization to reduce racial disparities, at least without also reforming other aspects of the criminal justice system (e.g., police training).

We are already more than three years into the bold experiment that Colorado and Washington state launched (and roughly 20 years into the medical marijuana experiment that California launched), but we are still largely ignorant of the actual impacts these reforms have had on the criminal justice system. My hope is that will soon change – that researchers will tackle this important issue—and that the optimistic forecasts surrounding reforms will prove well founded.

Robert A. Mikos, Professor of Law, is the author of many scholarly articles and a forthcoming textbook analyzing marijuana law and policy.@vanderbiltlaw

Government guardrails to improve marijuana policy

On marijuana, everyone wants to talk about states’ rights—but they should be talking about federal guardrails. Without federal oversight, there would be no way to ensure legalizing states take into consideration important federal interests, like drug-free kids and roads. Not all state laws are equal, and the federal government should be able to distinguish, for example, between the 6 states that currently have open container laws prohibiting all marijuana consumption in cars and the 17 that don’t. Politically speaking, “states’ rights” is a non-starter message for most Democrats, and for the sizable “marijuana middle,” it’s a completely hands-off approach that goes too far.

Instead, Congress should establish federal guardrails by passing a safe haven law allowing states with effective regulatory systems to get a waiver from federal prohibition. In those states, market participants could operate without fear of prosecution, banks could serve marijuana businesses, and state governments would be free of preemption threats. States are the laboratories of democracy on marijuana—but they shouldn’t have to do it blind. We should use what we know about laws that are working (and those that aren’t) to guide states in the right direction and ensure legalization proceeds as safely and successfully as possible.

Authors

April 20th serves as the highest of High Holidays for the marijuana movement. This year comes, once again, with rapid policy changes around medical and recreational marijuana. Several states will vote on recreational or medical marijuana initiatives this fall, including Massachusetts, Maine, Nevada, California, Florida, Arkansas and possibly others. Legislatures in Vermont and Rhode Island are considering legalization legislation currently. On Sunday, Gov. Wolf (D-PA) signed into law the nation’s 25th medical marijuana program, and this week, the United Nations is holding a special session on drug policy.

With policy transforming at a dizzying pace, it is important to remember that attention to some critical issues can often get lost in the process. Focusing our attention on some of these issues is as important as debates about ballot initiatives, treaty obligations, and state regulations. To do this, I asked some of the top minds in the drug policy world to write a brief response to a basic question:

What is the most important aspect of marijuana policy that is receiving little or no attention, and why is it important?

A diverse group of scholars have helped me answer this question, and some of their responses may surprise you. After reading their commentary, I encourage you to continue the conversation on social media, tweeting to me @JohnJHudak using hashtag #420policy.

How lawsuits may improve cannabis safety

It is important not to overlook the potential role that products liability litigation will play in shaping the development of the cannabis industry. In the booming business of legal cannabis, consumers demand quality, safety, and accountability from producers, and there has already been one, albeit unsuccessful, products liability class action filed on behalf of consumers who purchased marijuana treated with harmful pesticides. Companies that engage in irresponsible, deceptive, and misleading business practices will exacerbate existing concerns about the safety and legitimacy of the cannabis industry. On the bright side, it is also possible that products liability litigation will magnify consumer protection concerns, thus putting greater pressure on lawmakers to enact policy reforms that enable federal regulation of the industry. Products liability litigation will illuminate potential dangers associated with the use of novel, largely untested products continuously cropping up in the budding industry. Several years ago, any attorney brazen enough to file a class action claim on behalf of cannabis consumers duped by their dealer would face ridicule, and possibly even disbarment. The fact that products liability litigation is becoming a greater reality in the cannabis industry says a lot about how far the industry has come in terms of gaining legitimacy.

Third-year Law Student, Vanderbilt University. Research Assistant to Professor Robert Mikos, working on a new Marijuana Law and Policy casebook.
@LegallyBurns

Cannabis consumption: The ‘who’ and ‘how much’

People do not realize the extent to which marijuana consumption is concentrated amongst the minority of heaviest users. The top 20% of users consume 80% of the marijuana. Also, while the typical past-year user only used once a week, the typical gram of marijuana is consumed by someone who uses every single day.

This skew masks the very great increases in use. The number of past-year marijuana users has grown, but modestly. However, the number who self-report using every day is seven times greater now than it was in 1992. Six times as many Americans report using alcohol in the past-month as report using marijuana, but in terms of daily users the ratio is now below two to one (15 million daily alcohol users vs. 8 million daily marijuana users).

The skew also distorts perceptions of marijuana’s dependence liability. Only about one in three who have tried marijuana went on to use on 100 or more occasions. Tobacco researchers often do not count people as “ever smokers” unless they have used at least that often. If we adopted that definition for marijuana, then the lifetime risk of dependence would suddenly swell from 9-15% of those who have ever tried to 27-45% of those who ever used marijuana on a recurring basis.

Cannabis as medicine for pain and addiction

America loves its opiates, consuming 80% of the world’s supply of prescription pain medications like Oxycontin and Vicodin. But it's a deadly affair, with over 25,000 overdose deaths in 2014, and, according to the CDC, over a quarter million deaths since 2001.

Cannabis has a long history of use as a pain medication, and could be a boon to the field of palliative medicine. Several studies show encouraging evidence that chronic pain patients who are dependent on daily high-dose opiates could taper to lower and safer doses, or wean off completely, using medicinal cannabis. And anecdotes are amassing from clinicians and patients from California to Maine that cannabis is helpful in moderating addiction to opiates, crack cocaine, and alcohol. Every day, drug users die of overdoses that prescribed cannabis could prevent.

Meanwhile, the recent opiate epidemic has killed more Americans than automobile accidents, handguns, and all of our wars since Vietnam. Ironically, the DEA has allowed a 39-fold increase in the production of opiate-based painkillers over the past two decades. There has never been a more evident need to close the “hypocrisy gap” between an ancient herbal medicine and these legal, deadly, and over-marketed opiates.

The positive impact of medical cannabis on addiction treatment and overdose prevention is already evident. According to a 2014 article in Journal of the American Medical Association, the 23 states and Washington DC that have already passed medical marijuana laws have significantly lower rates of opiate related overdose deaths (as much as 40% between 1999-2010). This is a dramatic validation of the use of cannabis as a low risk substitute for, or adjunct to, prescription opiate pain medications.

With the increasing number of people losing their lives from opiate overdose, we can’t let the residual stigma that still attaches to marijuana (and it use as an effective medicine) prevent progress in ending this deadly epidemic.

Research Professor and Director of the Academy for Public Health and Criminal Justice, John Jay College of Criminal Justice, City University of NY
@JohnJayCollege

Big Pharma’s possible response to rescheduling

I think an underappreciated worry is the damage that rescheduling marijuana could do the existing industry at this point. If the Obama administration were to place marijuana in Schedule II, say, but to repeal the Cole Memo, things would be devastating for everyone doing business in the states as well as for patients and caregivers operating in both medical and recreational states. We don't allow people to make their own controlled substances, to sell or produce them without a prescription, or to use them in a recreational way and that model would be decimated. (Without the repeal of the Cole memo, we might have the unusual situation where recreational marijuana is ignored as now, but medical is funneled into a pharmaceutical model.) If the Obama administration is serious, then, about treating marijuana as medicine - a goal long held by much of the law reform movement - it could ironically have the effect of reversing facts on the ground rather than driving them.

Vicente Sederberg Professor of Marijuana Law and Policy, Sturm College of Law, University of Denver
@ProfSamKamin

It would be wise to consider middle-ground options

Much of the cannabis debate in the United States focuses on two options: Prohibition or the “regulate marijuana like alcohol” approach. This is frustrating. Since 20% of cannabis users—your daily and near-daily users—account for 80% of total cannabis consumption, for-profit companies have strong incentives to create and maintain a large stock of heavy users. I also expect that over time the for-profit industry and its lobbyists will fight against regulation and taxation.

Fortunately, for jurisdictions contemplating alternatives to prohibiting cannabis supply, there are a number of middle-ground options ranging from home production to a government monopoly to a non-profit/for-benefit model.

Since no one knows how legalization is going to play out, I wish there was more discussion about taking an incremental approach to cannabis reform. Jumping from prohibition to a for-profit model is a risky approach that will be very difficult to reverse. It seems reasonable that cautious jurisdictions would explore middle-ground options and see how they work before committing to commercialization based on the U.S. alcohol model. Indeed, jurisdictions could pass a middle-ground option with a sunset clause which would give them the opportunity after a set amount of time to pass a law to either continue with that alternative or try something else.

Cannabis policy: reform and race

What has been the actual effect of marijuana reforms on racial disparities in the criminal justice system? Racial minorities are arrested and imprisoned at higher rates than are whites, and these disparities are commonly attributed at least in part to the nation’s strict drug laws. Because marijuana is involved in a large share of criminal cases, many proponents of marijuana reform have suggested that legalizing the drug will lessen racial disparities.

But what has actually happened in the wake of marijuana reforms? Have reforms reduced the total number of people being arrested or imprisoned? And more to the point, have reforms narrowed the racial disparities in arrest and imprisonment rates? It is possible, after all, that police have found other crimes to charge now that they can no longer arrest individuals for (some) marijuana offenses—there is certainly no shortage of petty to serious offenses that remain on the law books and which are commonly violated. In other words, marijuana reforms may do no more than alter the names of the crimes being cited for arrest and imprisonment, but may not necessarily reduce the overall number of arrests and imprisonments. It's a gloomy thought, I know, but it may prove naïve to expect marijuana legalization to reduce racial disparities, at least without also reforming other aspects of the criminal justice system (e.g., police training).

We are already more than three years into the bold experiment that Colorado and Washington state launched (and roughly 20 years into the medical marijuana experiment that California launched), but we are still largely ignorant of the actual impacts these reforms have had on the criminal justice system. My hope is that will soon change – that researchers will tackle this important issue—and that the optimistic forecasts surrounding reforms will prove well founded.

Robert A. Mikos, Professor of Law, is the author of many scholarly articles and a forthcoming textbook analyzing marijuana law and policy.
@vanderbiltlaw

Government guardrails to improve marijuana policy

On marijuana, everyone wants to talk about states’ rights—but they should be talking about federal guardrails. Without federal oversight, there would be no way to ensure legalizing states take into consideration important federal interests, like drug-free kids and roads. Not all state laws are equal, and the federal government should be able to distinguish, for example, between the 6 states that currently have open container laws prohibiting all marijuana consumption in cars and the 17 that don’t. Politically speaking, “states’ rights” is a non-starter message for most Democrats, and for the sizable “marijuana middle,” it’s a completely hands-off approach that goes too far.

Instead, Congress should establish federal guardrails by passing a safe haven law allowing states with effective regulatory systems to get a waiver from federal prohibition. In those states, market participants could operate without fear of prosecution, banks could serve marijuana businesses, and state governments would be free of preemption threats. States are the laboratories of democracy on marijuana—but they shouldn’t have to do it blind. We should use what we know about laws that are working (and those that aren’t) to guide states in the right direction and ensure legalization proceeds as safely and successfully as possible.

Authors

]]>
http://www.brookings.edu/events/2016/04/14-marijuana-rescheduling-debate-hudak?rssid=marijuana+legalization{EF4DA912-34BC-4064-A44C-42AF5872A2FA}http://webfeeds.brookings.edu/~/149253120/0/brookingsrss/topics/marijuanalegalization~Brookings-Debate-Should-the-federal-government-remove-marijuana-from-its-list-of-Schedule-I-drugsBrookings Debate: Should the federal government remove marijuana from its list of Schedule I drugs?

Event Information

In case you haven’t noticed, America is in the midst of a marijuana revolution. Twenty-three states and the District of Columbia have legalized marijuana for medical or recreational purposes, and others may soon follow.

Under federal law, however, marijuana remains classified as a highly dangerous Schedule I substance under the Controlled Substances Act of 1970. Along with heroin, LSD, and ecstasy, drugs in this category are deemed to have “high potential for abuse” and “no currently accepted medical use,” two definitions that are argued about passionately by advocates on both sides of the issue.

Despite the federal government’s unwavering stance, states that have legalized marijuana for medicinal use allow cannabis and its derivatives to be used to treat cancer patients and those suffering from other serious ailments. With federal and state law at odds, however, many patients, doctors and small businesses have been caught in a policy gridlock that severely impacts their daily lives.

What are the potential pros and cons and costs and benefits of the federal government reclassifying marijuana as a less dangerous drug? And how should the federal government respond to states passing laws at odds with its own?

On Thursday, April 14, experts on both sides of the issue presented their case and engaged in a lively debate.

Event Information

In case you haven’t noticed, America is in the midst of a marijuana revolution. Twenty-three states and the District of Columbia have legalized marijuana for medical or recreational purposes, and others may soon follow.

Under federal law, however, marijuana remains classified as a highly dangerous Schedule I substance under the Controlled Substances Act of 1970. Along with heroin, LSD, and ecstasy, drugs in this category are deemed to have “high potential for abuse” and “no currently accepted medical use,” two definitions that are argued about passionately by advocates on both sides of the issue.

Despite the federal government’s unwavering stance, states that have legalized marijuana for medicinal use allow cannabis and its derivatives to be used to treat cancer patients and those suffering from other serious ailments. With federal and state law at odds, however, many patients, doctors and small businesses have been caught in a policy gridlock that severely impacts their daily lives.

What are the potential pros and cons and costs and benefits of the federal government reclassifying marijuana as a less dangerous drug? And how should the federal government respond to states passing laws at odds with its own?

On Thursday, April 14, experts on both sides of the issue presented their case and engaged in a lively debate.

Audio

Transcript

Event Materials

]]>
http://www.brookings.edu/blogs/fixgov/posts/2016/04/13-carers-act-marijuana-reform-hudak?rssid=marijuana+legalization{546F4D3B-FB69-4AC1-9DB2-A7316666A4B2}http://webfeeds.brookings.edu/~/149184380/0/brookingsrss/topics/marijuanalegalization~Why-the-CARERS-Act-is-so-significant-for-marijuana-policy-reformWhy the CARERS Act is so significant for marijuana policy reform

Editor’s Note: On April 14, join John Hudak, Rep. Earl Blumenauer, Dr. Bertha Madras (Harvard School of Medicine), and David Evans (Partnership for Drug-Free Kids) at a Brookings Debate about medical marijuana engaging the question: Should the federal government remove marijuana from its list of Schedule I drugs? Click here to sign up to attend the event or to register for the live webcast.

In March 2015, an odd trio of U.S. Senators assembled to announce the introduction of marijuana reform legislation. Cory Booker, a liberal Democrat from New Jersey; Kirsten Gillibrand, a more moderate Democrat from New York; and Rand Paul, a libertarian leaning Republican from Kentucky introduced the CARERS Act. The Compassionate Access, Research Expansion, and Respect States Act seeks significant reforms in marijuana policy in the United States.

Many people have not heard of the CARERS Act, nor are they familiar with the policy problems it seeks to rectify. However, the law would affect policy for the more than 149 million Americans who live in the 23 states and the District of Columbia that allow medical marijuana. (That number rises to about 163 million Americans when Pennsylvania approves medical marijuana, as is expected in the coming months.) So, what does this somewhat anonymous legislation seek to do and what would it mean for state policy toward medical marijuana?

CARERS is the most comprehensive Senate legislation on marijuana

The CARERS Act is not the first piece of Senate legislation involving marijuana reform. In fact, legislative proposals on marijuana decriminalization date back to the 1970s. However, many of the marijuana reform bills in Congress have been filed in the House.

CARERS, as its name implies, addressed policy challenges in a variety of areas, involving a variety of stakeholders. It seeks to protect patient access in states with existing medical marijuana programs from federal intervention. The current state of policy offers patient protection through an informal agreement with the Obama administration. CARERS codifies the collection of Justice Department memos that currently duct tapes together federal marijuana policy.

CARERS also expands opportunities for medical and scientific researchers to study marijuana and its therapeutic uses. The legislation makes it easier for researchers to be registered and approved to study the drug and reduces some of the currently onerous rules research institutions must follow in order for marijuana studies to be conducted on their campuses. The bill also breaks down the current DEA-mandated, NIDA-contracted monopoly on the production of research-grade marijuana by expanding the number of federal government-approved grow operations.

CARERS, among its other provisions, seeks to specifically address two of the biggest challenges the current federal framework poses for state-level medical marijuana systems: veterans’ access and banking issues. The legislation would allow (not require) VA doctors—only in states with legal medical marijuana programs—to recommend medical marijuana to wounded warriors who qualify under a state’s laws. In addition, CARERS transforms current federal banking laws that would allow cannabis enterprises in medical marijuana states to have access to traditional banking services. Those reforms would lower costs to businesses (and thus consumers), shift the medical marijuana market away from its current cash-only system, and ultimately increase the safety that financial products provide firms and customers.

Senate CARERS Act (and its House companion) show bipartisan appeal

After CARERS was proposed in the Senate, Rep. Steve Cohen (D-Tenn.) introduced companion legislation in the House. One glance at both bills’ supporters shows how unique these proposals are. In an era—and in a city—that is characterized by antipathy across parties, hyperpolarization, and seemingly unending gridlock, marijuana has an interesting effect on Congress: it brings lawmakers together.

In the Senate for instance, Cory Booker (D-N.J.) is joined by 17 cosponsors. Those cosponsors hail from 13 states from all corners of the country. They include states with robust medical marijuana programs and ones that have been loathe to reform state policy in this area. The cosponsors include three Republicans, one Independent, and 13 Democrats. One other interesting aspects of this group involves presidential candidates. The 2016 presidential campaign has been the first one where marijuana has been treated less like a punchline and more like a policy, and many of the candidates supported, at a minimum, some combination of expanded research/states rights position on the issue. However, of the five Senators who ran for president this year, only Sen. Paul was an initial supporter; Sen. Graham (R-S.C.) signed on after leaving the presidential race. Senators Cruz (R-Texas), Rubio (R-Fla.), and Sanders (I-Vt.) have refused to cosponsor the legislation.

In the House, CARERS’ original sponsor, Steve Cohen, has been joined by 31 cosponsors. They hail from 18 states and include representatives from D.C. and Guam. In the House, there is greater bipartisanship support for the legislation. Nineteen Democrats join 12 of their Republican colleagues in supporting the bill. They include liberals like Reps. O’Rourke (Texas) and Blumenauer (Ore.) as well as deeply conservative members like Reps. Amash (Mich.) and Jones (N.C.). Cosponsors’ home states range from New York to South Carolina to Alaska to Hawaii and many places in between. Support is diverse and makes for very strange bedfellows in the House and Senate. To put it into perspective, two of the cosponsors Mick Mulvaney (R-S.C.) and Jerry Nadler (D-N.Y.) voted together only 20.3 percent of the time in the current Congress. Many of these members don’t agree on much, but they agree CARERS is a reform they can embrace.

CARERS “reschedules” marijuana and “deschedules” extracts

Despite some claims about marijuana reform legislation, CARERS does not mean national legalization of marijuana. In fact, it doesn’t even mean national legalization of medical marijuana. The effects of the bill are specific to states with existing medical marijuana programs.

CARERS would move marijuana from Schedule I to Schedule II status. This move, though not a major policy reform, would ease restrictions on researchers hoping to provide answers to a variety of scientific questions. It would help remove the government and politics from hindering progress in the scientific community. The substance would remain a controlled substance in a class with cocaine and opioids, but would remove it from Schedule I where it currently sits with heroin and LSD.

CARERS would also removed a commonly used marijuana extract—cannabidiol—from the federal drug schedules entirely. Cannabidiol (CBD) is used in a variety of medical settings, but most notably for the treatment of intractable epilepsy disorders. This substance has no intoxicating effect on users, as THC—marijuana’s intoxicating cannabinoid—has been stripped out. In fact, the legislation specifically notes a CBD extract is only deemed “descheduled” if it contains less than 0.3 percent THC.

CARERS is less about federal power and more about empowering states

For decades, marijuana policy in the U.S. has been dictated largely by the actions of the federal government. Even as states have legalized medical and adult-use marijuana, federal power has created a series of challenges with regard to access, growing, transportation, taxes, banking, security, research, criminal justice, and more. What CARERS seeks to do is remove those federal barriers, only for states that have legalized medical marijuana.

In many ways, it allows states to be the laboratories of democracy, while freeing up some of the restrictions that hold back markets from operating. Marijuana will never be a free market in this country. Government demands and public expectations mean that the market will be heavily regulated. Even in states with historically lax medical marijuana regulations (i.e., California, Colorado, Washington) serious efforts have been or are being made to enhance regulation. That said, even under a strict state-level enforcement environment, CARERS reforms allow financial, supply, and access aspects of the medical marijuana market to function more like traditional product markets—an ask the advocacy community has been making of federal officials for two decades.

Love it or hate it, CARERS exposes the diversity of medical marijuana stakeholders

Often times when topics turn to marijuana policy, many envisage an outdated, stereotypical, pop culture-driven caricature of the user or the activist. In reality, in American society today, the medical marijuana user cannot be pigeonholed. She may be an infant with epilepsy, a teenager subjected to combined rounds of chemotherapy and radiation to treat Stage IV leukemia, a black millennial suffering the painful effects of sickle cell, an Iraq War veteran tortured by the insomnia and anxiety associated with PTSD, a woman in her 50s who has battled rheumatoid arthritis since she was a young girl, or an elderly man dealing with ever-increasing tremors associated with his Parkinson’s Disease. In many ways, the face of medical marijuana is the face of America. Hundreds of thousands of Americans use it legally or illegally to treat a variety of disorders, diseases, and symptoms.

CARERS engages those sick individuals by increasing access to medical cannabis, but also by expanding research to help deal with questions about effectiveness for treatment by disease, dosing, potency, side effects, interactions, and a variety of other question which the medical community offers answers for traditional pharmaceutical and therapeutic treatments. Yet, CARERS goes further. As I profiled in my recent Brookings Essay and as the legislation exposes, patients, business owners, doctors, bankers, children, researchers, veterans, prosecutors, law enforcement, lawyers, accountants and state regulators all have a stake in a clearer, more uniform public policy. Current disjunction between state and federal laws means that millions of Americans operate in a legal gray in which choices are made on a whim and with a prayer. CARERS tries to assist all of these groups and bring some stability and consistency to marijuana policy in the U.S.

CARERS does not solve all of the policy challenges that exist in this space, nor does it meet all of the demands of the marijuana reform advocacy. Instead, while comprehensive and unprecedented, it offers a middle-of-the-road resolution to some of the policy areas' biggest problems. If passed, pro-reform advocates will be left wanting more and pro-prohibition advocates will be unhappy. However, the current state of policy in the U.S. is untenable and something has to give in some direction. Right now, a bipartisan group in Congress feels CARERS is the next logical step.

Authors

Editor’s Note: On April 14, join John Hudak, Rep. Earl Blumenauer, Dr. Bertha Madras (Harvard School of Medicine), and David Evans (Partnership for Drug-Free Kids) at a Brookings Debate about medical marijuana engaging the question: Should the federal government remove marijuana from its list of Schedule I drugs? Click here to sign up to attend the event or to register for the live webcast.

In March 2015, an odd trio of U.S. Senators assembled to announce the introduction of marijuana reform legislation. Cory Booker, a liberal Democrat from New Jersey; Kirsten Gillibrand, a more moderate Democrat from New York; and Rand Paul, a libertarian leaning Republican from Kentucky introduced the CARERS Act. The Compassionate Access, Research Expansion, and Respect States Act seeks significant reforms in marijuana policy in the United States.

Many people have not heard of the CARERS Act, nor are they familiar with the policy problems it seeks to rectify. However, the law would affect policy for the more than 149 million Americans who live in the 23 states and the District of Columbia that allow medical marijuana. (That number rises to about 163 million Americans when Pennsylvania approves medical marijuana, as is expected in the coming months.) So, what does this somewhat anonymous legislation seek to do and what would it mean for state policy toward medical marijuana?

CARERS is the most comprehensive Senate legislation on marijuana

The CARERS Act is not the first piece of Senate legislation involving marijuana reform. In fact, legislative proposals on marijuana decriminalization date back to the 1970s. However, many of the marijuana reform bills in Congress have been filed in the House.

CARERS, as its name implies, addressed policy challenges in a variety of areas, involving a variety of stakeholders. It seeks to protect patient access in states with existing medical marijuana programs from federal intervention. The current state of policy offers patient protection through an informal agreement with the Obama administration. CARERS codifies the collection of Justice Department memos that currently duct tapes together federal marijuana policy.

CARERS also expands opportunities for medical and scientific researchers to study marijuana and its therapeutic uses. The legislation makes it easier for researchers to be registered and approved to study the drug and reduces some of the currently onerous rules research institutions must follow in order for marijuana studies to be conducted on their campuses. The bill also breaks down the current DEA-mandated, NIDA-contracted monopoly on the production of research-grade marijuana by expanding the number of federal government-approved grow operations.

CARERS, among its other provisions, seeks to specifically address two of the biggest challenges the current federal framework poses for state-level medical marijuana systems: veterans’ access and banking issues. The legislation would allow (not require) VA doctors—only in states with legal medical marijuana programs—to recommend medical marijuana to wounded warriors who qualify under a state’s laws. In addition, CARERS transforms current federal banking laws that would allow cannabis enterprises in medical marijuana states to have access to traditional banking services. Those reforms would lower costs to businesses (and thus consumers), shift the medical marijuana market away from its current cash-only system, and ultimately increase the safety that financial products provide firms and customers.

Senate CARERS Act (and its House companion) show bipartisan appeal

After CARERS was proposed in the Senate, Rep. Steve Cohen (D-Tenn.) introduced companion legislation in the House. One glance at both bills’ supporters shows how unique these proposals are. In an era—and in a city—that is characterized by antipathy across parties, hyperpolarization, and seemingly unending gridlock, marijuana has an interesting effect on Congress: it brings lawmakers together.

In the Senate for instance, Cory Booker (D-N.J.) is joined by 17 cosponsors. Those cosponsors hail from 13 states from all corners of the country. They include states with robust medical marijuana programs and ones that have been loathe to reform state policy in this area. The cosponsors include three Republicans, one Independent, and 13 Democrats. One other interesting aspects of this group involves presidential candidates. The 2016 presidential campaign has been the first one where marijuana has been treated less like a punchline and more like a policy, and many of the candidates supported, at a minimum, some combination of expanded research/states rights position on the issue. However, of the five Senators who ran for president this year, only Sen. Paul was an initial supporter; Sen. Graham (R-S.C.) signed on after leaving the presidential race. Senators Cruz (R-Texas), Rubio (R-Fla.), and Sanders (I-Vt.) have refused to cosponsor the legislation.

In the House, CARERS’ original sponsor, Steve Cohen, has been joined by 31 cosponsors. They hail from 18 states and include representatives from D.C. and Guam. In the House, there is greater bipartisanship support for the legislation. Nineteen Democrats join 12 of their Republican colleagues in supporting the bill. They include liberals like Reps. O’Rourke (Texas) and Blumenauer (Ore.) as well as deeply conservative members like Reps. Amash (Mich.) and Jones (N.C.). Cosponsors’ home states range from New York to South Carolina to Alaska to Hawaii and many places in between. Support is diverse and makes for very strange bedfellows in the House and Senate. To put it into perspective, two of the cosponsors Mick Mulvaney (R-S.C.) and Jerry Nadler (D-N.Y.) voted together only 20.3 percent of the time in the current Congress. Many of these members don’t agree on much, but they agree CARERS is a reform they can embrace.

CARERS “reschedules” marijuana and “deschedules” extracts

Despite some claims about marijuana reform legislation, CARERS does not mean national legalization of marijuana. In fact, it doesn’t even mean national legalization of medical marijuana. The effects of the bill are specific to states with existing medical marijuana programs.

CARERS would move marijuana from Schedule I to Schedule II status. This move, though not a major policy reform, would ease restrictions on researchers hoping to provide answers to a variety of scientific questions. It would help remove the government and politics from hindering progress in the scientific community. The substance would remain a controlled substance in a class with cocaine and opioids, but would remove it from Schedule I where it currently sits with heroin and LSD.

CARERS would also removed a commonly used marijuana extract—cannabidiol—from the federal drug schedules entirely. Cannabidiol (CBD) is used in a variety of medical settings, but most notably for the treatment of intractable epilepsy disorders. This substance has no intoxicating effect on users, as THC—marijuana’s intoxicating cannabinoid—has been stripped out. In fact, the legislation specifically notes a CBD extract is only deemed “descheduled” if it contains less than 0.3 percent THC.

CARERS is less about federal power and more about empowering states

For decades, marijuana policy in the U.S. has been dictated largely by the actions of the federal government. Even as states have legalized medical and adult-use marijuana, federal power has created a series of challenges with regard to access, growing, transportation, taxes, banking, security, research, criminal justice, and more. What CARERS seeks to do is remove those federal barriers, only for states that have legalized medical marijuana.

In many ways, it allows states to be the laboratories of democracy, while freeing up some of the restrictions that hold back markets from operating. Marijuana will never be a free market in this country. Government demands and public expectations mean that the market will be heavily regulated. Even in states with historically lax medical marijuana regulations (i.e., California, Colorado, Washington) serious efforts have been or are being made to enhance regulation. That said, even under a strict state-level enforcement environment, CARERS reforms allow financial, supply, and access aspects of the medical marijuana market to function more like traditional product markets—an ask the advocacy community has been making of federal officials for two decades.

Love it or hate it, CARERS exposes the diversity of medical marijuana stakeholders

Often times when topics turn to marijuana policy, many envisage an outdated, stereotypical, pop culture-driven caricature of the user or the activist. In reality, in American society today, the medical marijuana user cannot be pigeonholed. She may be an infant with epilepsy, a teenager subjected to combined rounds of chemotherapy and radiation to treat Stage IV leukemia, a black millennial suffering the painful effects of sickle cell, an Iraq War veteran tortured by the insomnia and anxiety associated with PTSD, a woman in her 50s who has battled rheumatoid arthritis since she was a young girl, or an elderly man dealing with ever-increasing tremors associated with his Parkinson’s Disease. In many ways, the face of medical marijuana is the face of America. Hundreds of thousands of Americans use it legally or illegally to treat a variety of disorders, diseases, and symptoms.

CARERS engages those sick individuals by increasing access to medical cannabis, but also by expanding research to help deal with questions about effectiveness for treatment by disease, dosing, potency, side effects, interactions, and a variety of other question which the medical community offers answers for traditional pharmaceutical and therapeutic treatments. Yet, CARERS goes further. As I profiled in my recent Brookings Essay and as the legislation exposes, patients, business owners, doctors, bankers, children, researchers, veterans, prosecutors, law enforcement, lawyers, accountants and state regulators all have a stake in a clearer, more uniform public policy. Current disjunction between state and federal laws means that millions of Americans operate in a legal gray in which choices are made on a whim and with a prayer. CARERS tries to assist all of these groups and bring some stability and consistency to marijuana policy in the U.S.

CARERS does not solve all of the policy challenges that exist in this space, nor does it meet all of the demands of the marijuana reform advocacy. Instead, while comprehensive and unprecedented, it offers a middle-of-the-road resolution to some of the policy areas' biggest problems. If passed, pro-reform advocates will be left wanting more and pro-prohibition advocates will be unhappy. However, the current state of policy in the U.S. is untenable and something has to give in some direction. Right now, a bipartisan group in Congress feels CARERS is the next logical step.

Authors

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http://www.brookings.edu/blogs/brookings-now/posts/2016/04/tbe-medical-marijuana-map?rssid=marijuana+legalization{9F913FEB-3D1D-4BE1-8515-604E80D95A81}http://webfeeds.brookings.edu/~/148361290/0/brookingsrss/topics/marijuanalegalization~MAP-Medical-marijuana-laws-state-by-stateMAP: Medical marijuana laws state by stateOver the past two decades, many states have liberalized their policies toward medical marijuana. As of 2015, 23 states plus Washington, D.C. had legalized access to marijuana to treat various health ailments, while 16 others permit cannabidiol oil only for the treatment of epilepsy and other seizure disorders. Here is the current layout of where Americans can access medical marijuana and its compounds:
However, the map above doesn’t tell the entire story. While states are rapidly changing their policy, the federal government continues to list marijuana as illegal and one of the most dangerous drugs under the Controlled Substances Act (CSA).

In the new Brookings Essay, The Medical Marijuana Mess, John Hudak shines a light on these contradictory state and federal policies, which create risky and unnecessary obstacles for millions of patients and small business owners. The essay highlights the Collins family from Virginia, who were faced with the choice between moving their thirteen-year-old daughter across the country or violating the law. Read their story, and the ways the U.S. can work toward a more sensible marijuana policy, in the essay here.

Authors

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Mon, 11 Apr 2016 12:00:00 -0400James KingOver the past two decades, many states have liberalized their policies toward medical marijuana. As of 2015, 23 states plus Washington, D.C. had legalized access to marijuana to treat various health ailments, while 16 others permit cannabidiol oil only for the treatment of epilepsy and other seizure disorders. Here is the current layout of where Americans can access medical marijuana and its compounds:
However, the map above doesn’t tell the entire story. While states are rapidly changing their policy, the federal government continues to list marijuana as illegal and one of the most dangerous drugs under the Controlled Substances Act (CSA).

In the new Brookings Essay, The Medical Marijuana Mess, John Hudak shines a light on these contradictory state and federal policies, which create risky and unnecessary obstacles for millions of patients and small business owners. The essay highlights the Collins family from Virginia, who were faced with the choice between moving their thirteen-year-old daughter across the country or violating the law. Read their story, and the ways the U.S. can work toward a more sensible marijuana policy, in the essay here.

Authors

]]>
http://www.brookings.edu/blogs/fixgov/posts/2016/04/07-un-drug-policy-marijuana-prohibition-hudak?rssid=marijuana+legalization{452106BA-8B07-460E-B521-37612D5EF01D}http://webfeeds.brookings.edu/~/148143368/0/brookingsrss/topics/marijuanalegalization~UNGASS-and-the-consequences-of-international-drug-policyUNGASS and the consequences of international drug policy

In the coming weeks, the eyes of the drug policy community will be fixated on the United Nations. As the United Nations General Assembly Special Session (UNGASS) on the World Drug Problem draws near, the future of international drug policy is at stake. Questions abound about whether UNGASS will push forward the status quo or be open to reform. Will recent changes to drug laws in states across the U.S., and in member countries like Uruguay, Canada, Colombia, Spain, Mexico, and others drive the international body to shift away from a powerfully prohibitionist position?

On April 7, Brookings' Foreign Policy and Governance Studies programs hosted a panel on this topic, exploring how UNGASS may (or may not) change the drug policy landscape, what America's role is in that discussion, and how the current state of drug policy throughout the world be impacted by the U.N. session. In many ways, UNGASS has flown under the radar outside of the wonky, scientific communities who are addicted to the nuance of drug policy. Despite that lack of attention, the current state of drug policy has serious implications and far reaching effects for everyone.

Much of the framework on international drug policy exists because of the forceful advocacy and insistence of the U.S. government on worldwide prohibition. That advocacy led to the most prominent international agreement on drugs: the Single Convention on Narcotic Drugs signed in 1961. The Single Convention created not only an international legal structure, but became the bedrock of many national drug laws, like the Controlled Substances Act in the United States.

The manner in which international drug policy has been implemented has had profound consequences throughout the world and the fallout can be seen in a variety of areas. Here are a few:

Setting the tone on drug policy

The U.S.-driven, U.N. drug policy prescribes a one size fits all policy around drugs for a variety of substances throughout the world. The challenge is that, for many strategic reasons, that stance forced other member nations to adopt it. This ensured that uniform policies, applied to a varied set of nations, resulted in dramatically different outcomes. Some nations had better experiences than others, but all experienced challenges.

What's more, American leadership in this area made it more difficult for other nations to lobby for reforms on the international stage. For decades, nations were “policy-takers.” That is, they had little choice but to accept the international agreements, abide by the rules, and ultimately deal with whatever consequences may arise. Over time, however, that tacit acceptance of international order began to decay—among member nations and even within individual American states. Now, the United Nations will convene a special session in an international environment whose drug policy has gone through a dramatic transformation over the past few years.

The U.S. government, a bystander to policy change

Despite international prohibition, governments began to consider alternatives, including liberalizing drug laws in various ways. Efforts toward policy experimentation sought to push the envelope of the international status quo and make laws work better for the environment and context in which they would be enforced. Such changes caught on. Coffee shops in Amsterdam and cannabis clubs in Spain gave way to full-fledged medical marijuana programs in places like Canada and California and eventually adult-use legalization in four American states, the District of Columbia, and Uruguay.

In the process, the U.S. government could have met the other U.N. member states in the middle, guiding them away from complete liberalization and toward policies that are more acceptable. Instead, an absolutist commitment to the international status quo, even as American states "go rogue," leaves the U.S. as a policy bystander, watching as nations push the limits of international law—and even defy it.

By doing so, the U.S. has largely passed on a strategic opportunity to work within the new and changing international context, allowing pre-existing policy biases and commitments to reign supreme.

That means that the U.S. government position is weakened with regard to international policy. It also means that the U.S. government looks more deeply hypocritical, turning an explicit blind eye to full-scale adult-use legalization in five of its jurisdictions and medical marijuana legalization in 24 of its jurisdictions. All the while, the government frowns upon abrogation of international law by other nations seeking to change their drug laws.

A failure to acknowledge the international consequences of prohibition

In the 1960s, drug prohibition—and particularly marijuana prohibition—was widely seen as an effective policy to guard against dangerous drugs. Over time, it became clear that drug prohibition (as implemented) created very serious, negative consequences in many countries across the world. Prohibition did not stop drug production, sale, or use. Instead, it helped determine the types of individuals participating in the drug business. In Central and Southeast Asia and in Latin America, prohibition drove huge increases in cartel activity and violent crime. Murder rates skyrocketed in many countries and drugs were used to fund a variety of terrorist organizations.

Nations suffered deeply as a result of international drug policy, and in many cases, the response to such scenarios, was not a change in policy, but a doubling down on existing policy. That further deepened many of the crises that nations around the world were experiencing. Rather than achieving the intended goal—an elimination of the drug trade and drug use—U.N. policy intensified many of the challenges around the world.

We need an honest assessment of the status quo. That denial of the negative consequences of drug prohibition cost lives, threatened the legitimacy of democratically elected governments, and cost a significant amount of American aid and funding from foreign governments. In a significant way, the goals of the international drug war were not achieved and the response was not better policy.

A failure to acknowledge the domestic consequences of prohibition

The U.S. felt consequences from drug prohibition, and particularly marijuana prohibition, as well. Governments across the United States—federal, state, and local—expended massive sums of money to combat drug use. Those efforts were admirable in part, but also devastating. The drug war introduced hundreds of thousands of young individuals, especially individuals of color, to the criminal justice system. It helped contribute to a society notorious for incarceration of individuals using drugs, rather than providing treatment for those using drugs. The costs in dollars, in human capital, and in foregone opportunity were staggering.

Like in the international arena, the domestic arena offered government an opportunity to respond to policy failure with policy changes. However, for decades, the response was exactly the opposite: it was a continuation of existing policy despite evidence of both its harmful effects and its inability to achieve its intended goals. Politicians battled between fears of being labeled soft on drugs and acknowledging the realities of the fallout of drug policy. Few elected officials were willing to acknowledge such inconsistency—for medical or recreational use of certain drugs. When they did, those officials were seen as fringe politicians. Congressmen like Stewart McKinney (R-CT), Barney Frank (D-MA), and Ron Paul (R-TX) were seen not as forward-thinking policymakers, but as fringe politicians peddling nonsensical policy.

All the while, calls for reform of drug laws grew louder. Particularly in the context of marijuana, calls for its use for medicinal purposes began to rise in prominence. Those efforts began with advocacy organizations. Soon, they became the talking points of more mainstream organizations focused on rights and equality. Eventually, states joined in the efforts, passing medical marijuana ballot initiatives and legislation—all but begging the federal government to reconsider its stance on these issues. Often, the U.S. government hid behind its obligations under the Single Convention to avoid expanding research into illicit substances, even as scientific and medical exceptions to prohibition were explicitly spelled out in the U.N. treaty for marijuana and other drugs. In fact, it was not until this week—55 years after the signing of the single convention—that a document was issued by the US government that offered an honest assessment of the government's obligations under the Single Convention and its opportunities afforded to it via medical and scientific exceptions.

The costs of the status quo in drug policy

International drug policy, as implemented in member nations, has caused damage to a variety of communities. For decades, the US interpreted the single convention to prohibit a variety of activities, such as medical exceptions for marijuana use, despite clear language to the contrary. This hindered the scientific and medical communities from answering critical research questions. In the process it also harmed patients, doctors, scientists and others who actively sought a different path for such policy.

Last month in a Brookings Essay entitled “The Medical Marijuana Mess,” I profiled a patient and a cannabis business owner who have been mightily harmed by the US government's stance on marijuana policy. That position kept patients—even children—sick; barring them from the use of a substance that science has shown has real opportunity to offer medicinal value and therapeutic benefits. It complicated efforts to use marijuana for medical uses while operating within the bounds of international law.

The challenge for many is not only that the U.S. government creates obstacles to medical research and the provision of a substance that has been indicated as beneficial for the treatment of epilepsy, PTSD, chemotherapy side effects, glaucoma, HIV/AIDS-related conditions, muscle spasticity, pain management, and many other conditions. The government has been dishonest about how international law serves as a primary limitation.

Perhaps the goal of international drug policy was to limit "less desirable" foreign nations from producing and distributing drugs. The result has been a system within the United States that has been harmful to many.

As the U.N. prepares to revisit its position on drug policy via the Single Convention, it has a real chance to look back at what the last 55 years have delivered to the international community. It needs not scrap the existing system wholly. But it can respond to the legitimate scientific, medical, social, and political changes since then and adjust international policy accordingly and responsibly.

Authors

In the coming weeks, the eyes of the drug policy community will be fixated on the United Nations. As the United Nations General Assembly Special Session (UNGASS) on the World Drug Problem draws near, the future of international drug policy is at stake. Questions abound about whether UNGASS will push forward the status quo or be open to reform. Will recent changes to drug laws in states across the U.S., and in member countries like Uruguay, Canada, Colombia, Spain, Mexico, and others drive the international body to shift away from a powerfully prohibitionist position?

On April 7, Brookings' Foreign Policy and Governance Studies programs hosted a panel on this topic, exploring how UNGASS may (or may not) change the drug policy landscape, what America's role is in that discussion, and how the current state of drug policy throughout the world be impacted by the U.N. session. In many ways, UNGASS has flown under the radar outside of the wonky, scientific communities who are addicted to the nuance of drug policy. Despite that lack of attention, the current state of drug policy has serious implications and far reaching effects for everyone.

Much of the framework on international drug policy exists because of the forceful advocacy and insistence of the U.S. government on worldwide prohibition. That advocacy led to the most prominent international agreement on drugs: the Single Convention on Narcotic Drugs signed in 1961. The Single Convention created not only an international legal structure, but became the bedrock of many national drug laws, like the Controlled Substances Act in the United States.

The manner in which international drug policy has been implemented has had profound consequences throughout the world and the fallout can be seen in a variety of areas. Here are a few:

Setting the tone on drug policy

The U.S.-driven, U.N. drug policy prescribes a one size fits all policy around drugs for a variety of substances throughout the world. The challenge is that, for many strategic reasons, that stance forced other member nations to adopt it. This ensured that uniform policies, applied to a varied set of nations, resulted in dramatically different outcomes. Some nations had better experiences than others, but all experienced challenges.

What's more, American leadership in this area made it more difficult for other nations to lobby for reforms on the international stage. For decades, nations were “policy-takers.” That is, they had little choice but to accept the international agreements, abide by the rules, and ultimately deal with whatever consequences may arise. Over time, however, that tacit acceptance of international order began to decay—among member nations and even within individual American states. Now, the United Nations will convene a special session in an international environment whose drug policy has gone through a dramatic transformation over the past few years.

The U.S. government, a bystander to policy change

Despite international prohibition, governments began to consider alternatives, including liberalizing drug laws in various ways. Efforts toward policy experimentation sought to push the envelope of the international status quo and make laws work better for the environment and context in which they would be enforced. Such changes caught on. Coffee shops in Amsterdam and cannabis clubs in Spain gave way to full-fledged medical marijuana programs in places like Canada and California and eventually adult-use legalization in four American states, the District of Columbia, and Uruguay.

In the process, the U.S. government could have met the other U.N. member states in the middle, guiding them away from complete liberalization and toward policies that are more acceptable. Instead, an absolutist commitment to the international status quo, even as American states "go rogue," leaves the U.S. as a policy bystander, watching as nations push the limits of international law—and even defy it.

By doing so, the U.S. has largely passed on a strategic opportunity to work within the new and changing international context, allowing pre-existing policy biases and commitments to reign supreme.

That means that the U.S. government position is weakened with regard to international policy. It also means that the U.S. government looks more deeply hypocritical, turning an explicit blind eye to full-scale adult-use legalization in five of its jurisdictions and medical marijuana legalization in 24 of its jurisdictions. All the while, the government frowns upon abrogation of international law by other nations seeking to change their drug laws.

A failure to acknowledge the international consequences of prohibition

In the 1960s, drug prohibition—and particularly marijuana prohibition—was widely seen as an effective policy to guard against dangerous drugs. Over time, it became clear that drug prohibition (as implemented) created very serious, negative consequences in many countries across the world. Prohibition did not stop drug production, sale, or use. Instead, it helped determine the types of individuals participating in the drug business. In Central and Southeast Asia and in Latin America, prohibition drove huge increases in cartel activity and violent crime. Murder rates skyrocketed in many countries and drugs were used to fund a variety of terrorist organizations.

Nations suffered deeply as a result of international drug policy, and in many cases, the response to such scenarios, was not a change in policy, but a doubling down on existing policy. That further deepened many of the crises that nations around the world were experiencing. Rather than achieving the intended goal—an elimination of the drug trade and drug use—U.N. policy intensified many of the challenges around the world.

We need an honest assessment of the status quo. That denial of the negative consequences of drug prohibition cost lives, threatened the legitimacy of democratically elected governments, and cost a significant amount of American aid and funding from foreign governments. In a significant way, the goals of the international drug war were not achieved and the response was not better policy.

A failure to acknowledge the domestic consequences of prohibition

The U.S. felt consequences from drug prohibition, and particularly marijuana prohibition, as well. Governments across the United States—federal, state, and local—expended massive sums of money to combat drug use. Those efforts were admirable in part, but also devastating. The drug war introduced hundreds of thousands of young individuals, especially individuals of color, to the criminal justice system. It helped contribute to a society notorious for incarceration of individuals using drugs, rather than providing treatment for those using drugs. The costs in dollars, in human capital, and in foregone opportunity were staggering.

Like in the international arena, the domestic arena offered government an opportunity to respond to policy failure with policy changes. However, for decades, the response was exactly the opposite: it was a continuation of existing policy despite evidence of both its harmful effects and its inability to achieve its intended goals. Politicians battled between fears of being labeled soft on drugs and acknowledging the realities of the fallout of drug policy. Few elected officials were willing to acknowledge such inconsistency—for medical or recreational use of certain drugs. When they did, those officials were seen as fringe politicians. Congressmen like Stewart McKinney (R-CT), Barney Frank (D-MA), and Ron Paul (R-TX) were seen not as forward-thinking policymakers, but as fringe politicians peddling nonsensical policy.

All the while, calls for reform of drug laws grew louder. Particularly in the context of marijuana, calls for its use for medicinal purposes began to rise in prominence. Those efforts began with advocacy organizations. Soon, they became the talking points of more mainstream organizations focused on rights and equality. Eventually, states joined in the efforts, passing medical marijuana ballot initiatives and legislation—all but begging the federal government to reconsider its stance on these issues. Often, the U.S. government hid behind its obligations under the Single Convention to avoid expanding research into illicit substances, even as scientific and medical exceptions to prohibition were explicitly spelled out in the U.N. treaty for marijuana and other drugs. In fact, it was not until this week—55 years after the signing of the single convention—that a document was issued by the US government that offered an honest assessment of the government's obligations under the Single Convention and its opportunities afforded to it via medical and scientific exceptions.

The costs of the status quo in drug policy

International drug policy, as implemented in member nations, has caused damage to a variety of communities. For decades, the US interpreted the single convention to prohibit a variety of activities, such as medical exceptions for marijuana use, despite clear language to the contrary. This hindered the scientific and medical communities from answering critical research questions. In the process it also harmed patients, doctors, scientists and others who actively sought a different path for such policy.

Last month in a Brookings Essay entitled “The Medical Marijuana Mess,” I profiled a patient and a cannabis business owner who have been mightily harmed by the US government's stance on marijuana policy. That position kept patients—even children—sick; barring them from the use of a substance that science has shown has real opportunity to offer medicinal value and therapeutic benefits. It complicated efforts to use marijuana for medical uses while operating within the bounds of international law.

The challenge for many is not only that the U.S. government creates obstacles to medical research and the provision of a substance that has been indicated as beneficial for the treatment of epilepsy, PTSD, chemotherapy side effects, glaucoma, HIV/AIDS-related conditions, muscle spasticity, pain management, and many other conditions. The government has been dishonest about how international law serves as a primary limitation.

Perhaps the goal of international drug policy was to limit "less desirable" foreign nations from producing and distributing drugs. The result has been a system within the United States that has been harmful to many.

As the U.N. prepares to revisit its position on drug policy via the Single Convention, it has a real chance to look back at what the last 55 years have delivered to the international community. It needs not scrap the existing system wholly. But it can respond to the legitimate scientific, medical, social, and political changes since then and adjust international policy accordingly and responsibly.

Event Information

As the world prepares for the April 2016 Special Session of the United Nations General Assembly on the World Drug Problem (UNGASS 2016), there is an emerging "dissensus" among states on how best to address the costs, harms, and risks associated with illicit drugs. An increasing number of countries in the Americas and Europe are now opposed to punitive counterdrug policies and are experimenting with reform, even as major powers such as Russia and China continue to defend a prohibitionist interpretation of the international counternarcotics regime. And the United States, once the global regime’s chief enforcer, is now itself a hotbed of experimentation as nearly half of its states have implemented medicinal or legalized access to cannabis.

On April 7, the Brookings Foreign Policy and Governance Studies programs hosted a conversation on what we can learn from drug policy reforms now being conducted in the United States and across the globe and what flexibility will exist in the global counternarcotics regime for implementing improved drug policies after UNGASS 2016.

Event Information

As the world prepares for the April 2016 Special Session of the United Nations General Assembly on the World Drug Problem (UNGASS 2016), there is an emerging "dissensus" among states on how best to address the costs, harms, and risks associated with illicit drugs. An increasing number of countries in the Americas and Europe are now opposed to punitive counterdrug policies and are experimenting with reform, even as major powers such as Russia and China continue to defend a prohibitionist interpretation of the international counternarcotics regime. And the United States, once the global regime’s chief enforcer, is now itself a hotbed of experimentation as nearly half of its states have implemented medicinal or legalized access to cannabis.

On April 7, the Brookings Foreign Policy and Governance Studies programs hosted a conversation on what we can learn from drug policy reforms now being conducted in the United States and across the globe and what flexibility will exist in the global counternarcotics regime for implementing improved drug policies after UNGASS 2016.

As states legalize marijuana, more marijuana businesses are opening across the country. An obscure 1982 brainchild of Bob Dole’s Senate Finance Committee, section 280E of the federal tax code, is hitting state-legal marijuana sellers in the pocketbook—right now. 280E, which says taxpayers cannot deduct costs of selling federally illegal drugs, is not just helping fund the federal government. It’s also hampering marijuana advertising and marketing—to the satisfaction of nervous parents, and to the consternation of profit-seeking marijuana promoters.

280E was more a political statement than a model of tax policy, and it can’t eliminate marijuana advertising. But it does discourage that advertising, so it may be one of the most useful marijuana tax laws we can imagine. And while some anti-advertising proposals run afoul of the commercial free speech doctrine, 280E is constitutional. So 280E may help slow down Big Marijuana. If so, an anti-advertising tax rule like 280E might come in handy if the public ever musters the strength to take on Big Alcohol and Big Tobacco.

How 280E makes marijuana ads non-tax-deductible

Federal Internal Revenue Code Section 280E says taxpayers "trafficking in controlled substances" get "no deduction" for many expenses. 280E denies deductions to sellers of all federally illegal drugs, so it hits all marijuana sellers, even when they are scrupulously following state medical or recreational marijuana laws. Remember that although marijuana is illegal under federal law, pot sellers still owe full federal income tax. (Not paying tax is how Al Capone went to jail.)

State-legal marijuana sellers do get to deduct “cost of goods sold”—the costs of making or buying the product they sell—as well as state taxes and fees. But when they fill out their 1040s, marijuana sellers suffer an unusual penalty: They can’t deduct the cost of marijuana advertising on their federal returns. (They lose other deductions, too; more about those below.)

Section 280E came into the tax code in 1982, as two factors converged. First, the pendulum of opinion had swung in favor of the War on Drugs; second, the Reagan Administration was working with the congressional tax-writing committees, House Ways and Means and Senate Finance, to enact a package of revenue gainers, or “enhancements,” that eventually became TEFRA—the Tax Equity and Fiscal Responsibility Act of 1982. Senator Bob Dole’s Finance Committee noticed a Tax Court case that allowed a drug dealer to deduct selling expenses. That committee, and then the full Congress, decided to make selling expenses of drug dealers nondeductible. The 280E provision was so politically bulletproof that no committee bothered to hold hearings. The Reagan Administration signed off on TEFRA, 280E included.

Then there are state taxes. Willy-nilly, a 280E analogue hits many state income tax returns. That’s because many of the 43 states that have income taxes just conform to federal rules automatically. Many states allow only deductions that are allowed on the federal return—so marijuana sellers get nicked again.

The impact for advertising? 280E makes marijuana ads cost more, after tax, than standard ads. That higher cost will nudge against marijuana consumption, in one of two ways. Either sellers will be disincentivized from advertising or the additional costs will be passed onto the consumer through higher prices. So do marijuana ads, and higher consumption, create a problem? There are two sides to that question.

What’s wrong with marijuana advertising?

Marijuana’s political vulnerability starts with youth use. That’s where advertising comes in. Children and adolescents are uniquely susceptible to advertising. Already, kids who see medical marijuana ads are more likely to use the drug. Parents worry that kids will respond to kid-friendly ad messages or images, like “Buddie,” the smiling mascot of the losing “Responsible Ohio” legalization campaign, all too reminiscent of the shameful “Joe Camel.” Marijuana opponent Kevin Sabet warns of allowing “our teens to be bombarded with promotional messages from a new marijuana industry seeking lifelong customers.” While youth use of marijuana is reportedly plateauing, there’s a worry that over time, advertising will provide “a sexy, fun image” that will push youth use up.

To many supporters of legalization, meanwhile, advertising is a frill. Historically, marijuana commerce operated by word of mouth, underground. Traditional growers did the opposite of advertising: They learned how to hide. Consumers did not need advertising to find what they wanted. Harm-reduction reformers, whose goals include stopping arrests, aren’t leading the charge for advertising rights. So anti-ad rules can go a long way toward mollifying skeptics—without bothering some legalizers much.

The utility of marijuana advertising

Here’s the other side of the issue. Maybe marijuana advertising is not a problem that needs solving, or even addressing. Some legalizers say ads are a natural and proper part of U.S.-style free market capitalism.

Some arguments for marijuana ads are financially motivated. Retailers use ads to make money. Entrepreneurial MBAs are bringing marketing skills to the retail side of the industry—and want to use them. The industry would like to educate tourists about “[s]hatter, wax, hash, dabs and transdermals. Our visitors, they have no idea what the modern industry has in the store for them.” The media might be tempted by the lure of ad dollars, despite the taint of association with a federally illegal drug. Indeed, as the economic risk of illegality fades, financial motivation may lurk in marijuana policy arguments, as traditional business players, like November’s failed “Responsible Ohio” cartel, push aside bold outlaw entrepreneurs to take the lead in legalization efforts.

Other support for marijuana ads is philosophical. One argument is that marijuana use, in the aggregate, is so beneficial that society should promote it—or at least not suppress it. Another argument is that government shouldn’t have different commercial rules for different legal products. For instance, if you legalize marijuana, treat it like milk. This approach would force government to choose between two extremes—prohibition, or an all-out commercial model. If you distrust government, and want to limit its power, narrowing its options might look like a good idea. But narrowing options might backfire, and prevent any reform, if the public resists radical change.

Free Speech and 280E

It turns out that government’s power to limit advertising of legal products is, in itself, limited. Within living memory, the Supreme Court has extended the First Amendment to “commercial free speech”—like liquor billboards and TV ads. Marijuana is not federally protected yet, because it’s still federally illegal. But that could change. And there’s a pressing, immediate problem: states have their own constitutions with free speech clauses that often say they can’t ban commercial speech outright. So once a state legalizes marijuana, sellers typically have some right to advertise it—thanks to the state’s own Constitution.

Using a state constitutional amendment to legalize marijuana can end state protection for marijuana ads. Colorado’s 2012 amendment, though, wasn’t drafted clearly enough to prevent a state constitutional challenge to some ad restrictions the state is hoping to enforce.

In any event, in most state constitutions, commercial speech isn’t completely protected. Additionally, industry structure can constitutionally discourage aggressive marketing, by restrictive licensing that keeps businesses small, by limiting channels of distribution (so marijuana isn’t sold in convenience stores, for instance), or by allowing sales only in government stores.

But perhaps the most practical tool against marijuana advertising is a tax tool like 280E. Call it the joker in the deck: There is no constitutional right to a tax deduction. A legislature may not be able, constitutionally, to ban commercial speech, but nothing requires a legislature to make selling costs tax-deductible. That is, tax deductions depend on “legislative grace”—the legislative branch can grant them, or deny them. If the First Amendment protected tax deductions, lobbying expenses would be deductible, but they aren’t. In 2014, Republican Way and Means Chair Dave Camp proposed that even standard advertising should not be totally deductible up front—some costs should be “amortized,” or spread out over time, because ads can produce long-term results.

Beyond advertising to marketing

The plot thickens. Even if marijuana ads were totally banned, a tax tool like 280E would come in handy.

So far, it has been easy to use “advertising” as shorthand for “marketing.” Here’s the more nuanced picture: Advertising is just part of marketing, and the real issue is marketing, or selling, writ large—promoting, branding, displaying products, studying consumer behavior, advertising, or otherwise trying to make the sale. 280E makes all those marketing expenses non-deductible—for good or for ill.

Even an outright ad ban, if it were constitutional, wouldn’t discourage the other marketing expenses that 280E disallows.

Retail space is an example. Enterprising businesspeople organize their stores with the natural aim of enticing purchasers. Look at tobacco marketing. Tobacco companies had to sign away their constitutional right to advertising—to settle legal claims about their deception campaign. So now, tobacco sellers try to lure buyers with point-of-sale (POS) “Power Wall” displays in convenience stores. Sure enough, “Empirical studies consistently have found that exposure to POS tobacco product displays are associated with increased initiation among youth and reduced cessation by current smokers.” 280E, by disallowing deductions for renting retail space, and for salaries of retail clerks, takes aim at Power Walls and at all sales efforts, not just at ads.

While marketing feels the pinch of 280E, production doesn’t. So the impact of 280E’s tax policy is focused even within the marijuana industry. By hitting selling costs, 280E hurts primarily stores, not farms. That is, growers don’t suffer much; retailers do. That’s because “cost of goods sold” includes all of a farmer’s expenses of providing the plant (e.g., water, rent, labor, product research, testing, and electricity). That’s all deductible. And a retailer can deduct the amount it pays the grower for product. But the retailer can’t deduct selling costs—advertising, rent, payments to selling personnel, utilities—you name it. That non-deductibility hampers retailing. (Growers, too, can’t deduct advertising, salaries of sales people, or other selling expenses, but those amounts tend to be negligible—except for growers selling directly to consumers.) If it’s selling efforts that are worrisome, 280E’s aim looks pretty true.

Tax policy objections to 280E

To critics, 280E looks more like an awkward workaround of the commercial free speech doctrine than a model of tax policy. Its total denial of deductions doesn’t measure income accurately. That is, a taxpayer hit by 280E pays tax on “phantom income”—that taxpayer’s taxable income is greater than its actual income, because of the deductions that 280E denies. So marijuana selling expenses are treated like bribes, kickbacks, lobbying expenses, and fines—expenses that aren’t deductible, though they are associated with efforts to produce income in a traditional business sense. And 280E encourages weird ploys—entrepreneurial creativity in the face of legal minutae—like retailers having cashiers slowly roll joints when idle. That joint-rolling part of their work is production, not selling, so some of their hourly pay arguably goes into deductible “cost of goods sold” rather than non-deductible selling costs.

And 280E is discriminatory. Other illegal activities—prostitution, cigarette smuggling, gun-running—weren't touched by the 1982 law, only drugs were. (To be clear, those businesses’ marketing expenses tend to be trivial, so this objection is mainly theoretical.)

There’s more. 280E is overbroad in two ways. First, it penalizes advertising that doesn’t persuade, entice, or stoke demand. Ads listing hours of operation, for instance, inform rather than persuade. Second, 280E denies deductions for expenses that have nothing to do with marketing—and discourages activity that may be not be pernicious. For instance, legal and accounting fees are not part of “cost of goods sold,” so they are not deductible (though lawyers and accountants sometimes turn out to be giving business advice). Fine-tuning 280E to try to allow deductions for expenses that don’t directly promote sales would seek fairness—at the expense of simplicity. 280E’s broad brush may be more useful than no brush at all.

In 1982, as Bob Dole’s committee pushed 280E through, all of those objections were available but none prevented passage. Neither did the “belt-and-suspenders” argument—that the belt of criminal laws, including fines, could adequately handle drug dealers, so a tax penalty was like unnecessary suspenders. Now the criminal-law belt is disappearing (as federal prosecutorial discretion lets state-legal marijuana businesses operate), but the tax-law suspenders are still working. Opponents of marijuana have something to hold onto. And one must ask: Is Bob Dole smiling?

Marijuana marketing and beyond—ramifications of 280E

For marijuana, 280E remains a critical check. It pushes marijuana commerce toward a low profile that might thread the needle between opponents and enthusiasts. This is legalizing without publicizing—as proposed in another context, "Does it really matter what these affectionate people do, so long as they don't do it on the street and frighten the horses?" Hiding marijuana use and publicity from youth would suit a lot of parents just fine.

But marijuana, as a public health menace, pales in comparison to alcohol and tobacco. So the tax tool of deduction denial could be used against other problematic marketing efforts. The American Medical Association opposes direct-to-consumer advertising of prescription drugs—like the Viagra ads Bob Dole appeared in after his turn as Republican Presidential nominee in 1996. A middle-ground compromise would deny tax deductions for those ads. 280E’s broad anti-deduction rule would even make those cigarette-selling Power Walls more expensive, after tax. And one study says denying tax deductions for alcohol ads would save 1,300 lives a year.

Now what?

Let’s face it: Marijuana, when it’s legal, is going to be taxed. Even tax opponent Grover Norquist says marijuana taxes won’t violate his no-tax pledge. And 280E-style taxes discouraging advertising will be only secondary. The main taxes will eventually be measured by weight, price, or area under cultivation—or maybe by amount of THC, the primary intoxicant. Or hothouses’ electricity use could be taxed—to encourage outdoor growing. Or all of those taxes could be applied.

As legalization and taxation of marijuana advance, repeal or amendment of 280E would be difficult. (Normalizing banking rules for the marijuana industry is a no-brainer, by comparison.) As a practical matter, cutting taxes is hard in a time of deficits, particularly on a perceived vice. Repeal would be a revenue loser, and would have to be paid for—unless advocates steamroll repeal through, saying, “Deficits don’t matter.” The obvious way to pay for repeal of 280E is a federal marijuana excise tax. A federal excise tax could mean a higher tax burden overall for the industry. That result could be lose-lose: Higher taxes would hurt the industry, while repeal of 280E would encourage marijuana marketing, to the likely detriment of youth and excessive users.

And 280E has a surprising advantage over other possible federal marijuana taxes. Decades-old multilateral narcotics treaties make it awkward for the federal government to tax marijuana. Uruguay, Jamaica, Canada, and other countries may violate those treaties, but still. Any explicit new federal excise tax would look like full-blown legalization—creating a treaty problem. 280E is not part of legalization. On the contrary, Bob Dole’s tax penalty is consistent with illegality of marijuana. 280E brings in revenue but doesn't violate treaties. What a deal.

Meanwhile, what about those state income tax 280E analogues that became state law automatically? My friends who chaired California’s Blue Ribbon Commission on marijuana legalization looked at the partial 280E analogue there, and say that denying “regular business tax deductions . . . at the outset may be too onerous.” Indeed, it makes sense to ratchet marijuana excise taxes up over time, as the industry matures, and as pre-tax prices fall. But a 280E-type rule, nudging against advertising and marketing, may be the first tax you want to apply. As Bob Dole did.

So a 280E-style tax nudge can restrict marijuana marketing and throw sand in the gears of Big Marijuana. Meanwhile, bigger menaces, Big Alcohol and Big Tobacco, get to deduct every penny they can spend to promote sales. The commercial free speech doctrine may let sellers advertise and promote those products, but we don’t have to subsidize those sellers with tax deductions. So here’s a concluding thought: Try to extend 280E to the deadlier duo—alcohol and tobacco. Maybe give direct-to-consumer pharmaceutical ads the same treatment. But whatever you do, keep the 280E rule for marijuana marketing. If you can’t stop it, you can at least slow it down.

Authors

As states legalize marijuana, more marijuana businesses are opening across the country. An obscure 1982 brainchild of Bob Dole’s Senate Finance Committee, section 280E of the federal tax code, is hitting state-legal marijuana sellers in the pocketbook—right now. 280E, which says taxpayers cannot deduct costs of selling federally illegal drugs, is not just helping fund the federal government. It’s also hampering marijuana advertising and marketing—to the satisfaction of nervous parents, and to the consternation of profit-seeking marijuana promoters.

280E was more a political statement than a model of tax policy, and it can’t eliminate marijuana advertising. But it does discourage that advertising, so it may be one of the most useful marijuana tax laws we can imagine. And while some anti-advertising proposals run afoul of the commercial free speech doctrine, 280E is constitutional. So 280E may help slow down Big Marijuana. If so, an anti-advertising tax rule like 280E might come in handy if the public ever musters the strength to take on Big Alcohol and Big Tobacco.

How 280E makes marijuana ads non-tax-deductible

Federal Internal Revenue Code Section 280E says taxpayers "trafficking in controlled substances" get "no deduction" for many expenses. 280E denies deductions to sellers of all federally illegal drugs, so it hits all marijuana sellers, even when they are scrupulously following state medical or recreational marijuana laws. Remember that although marijuana is illegal under federal law, pot sellers still owe full federal income tax. (Not paying tax is how Al Capone went to jail.)

State-legal marijuana sellers do get to deduct “cost of goods sold”—the costs of making or buying the product they sell—as well as state taxes and fees. But when they fill out their 1040s, marijuana sellers suffer an unusual penalty: They can’t deduct the cost of marijuana advertising on their federal returns. (They lose other deductions, too; more about those below.)

Section 280E came into the tax code in 1982, as two factors converged. First, the pendulum of opinion had swung in favor of the War on Drugs; second, the Reagan Administration was working with the congressional tax-writing committees, House Ways and Means and Senate Finance, to enact a package of revenue gainers, or “enhancements,” that eventually became TEFRA—the Tax Equity and Fiscal Responsibility Act of 1982. Senator Bob Dole’s Finance Committee noticed a Tax Court case that allowed a drug dealer to deduct selling expenses. That committee, and then the full Congress, decided to make selling expenses of drug dealers nondeductible. The 280E provision was so politically bulletproof that no committee bothered to hold hearings. The Reagan Administration signed off on TEFRA, 280E included.

Then there are state taxes. Willy-nilly, a 280E analogue hits many state income tax returns. That’s because many of the 43 states that have income taxes just conform to federal rules automatically. Many states allow only deductions that are allowed on the federal return—so marijuana sellers get nicked again.

The impact for advertising? 280E makes marijuana ads cost more, after tax, than standard ads. That higher cost will nudge against marijuana consumption, in one of two ways. Either sellers will be disincentivized from advertising or the additional costs will be passed onto the consumer through higher prices. So do marijuana ads, and higher consumption, create a problem? There are two sides to that question.

What’s wrong with marijuana advertising?

Marijuana’s political vulnerability starts with youth use. That’s where advertising comes in. Children and adolescents are uniquely susceptible to advertising. Already, kids who see medical marijuana ads are more likely to use the drug. Parents worry that kids will respond to kid-friendly ad messages or images, like “Buddie,” the smiling mascot of the losing “Responsible Ohio” legalization campaign, all too reminiscent of the shameful “Joe Camel.” Marijuana opponent Kevin Sabet warns of allowing “our teens to be bombarded with promotional messages from a new marijuana industry seeking lifelong customers.” While youth use of marijuana is reportedly plateauing, there’s a worry that over time, advertising will provide “a sexy, fun image” that will push youth use up.

To many supporters of legalization, meanwhile, advertising is a frill. Historically, marijuana commerce operated by word of mouth, underground. Traditional growers did the opposite of advertising: They learned how to hide. Consumers did not need advertising to find what they wanted. Harm-reduction reformers, whose goals include stopping arrests, aren’t leading the charge for advertising rights. So anti-ad rules can go a long way toward mollifying skeptics—without bothering some legalizers much.

The utility of marijuana advertising

Here’s the other side of the issue. Maybe marijuana advertising is not a problem that needs solving, or even addressing. Some legalizers say ads are a natural and proper part of U.S.-style free market capitalism.

Some arguments for marijuana ads are financially motivated. Retailers use ads to make money. Entrepreneurial MBAs are bringing marketing skills to the retail side of the industry—and want to use them. The industry would like to educate tourists about “[s]hatter, wax, hash, dabs and transdermals. Our visitors, they have no idea what the modern industry has in the store for them.” The media might be tempted by the lure of ad dollars, despite the taint of association with a federally illegal drug. Indeed, as the economic risk of illegality fades, financial motivation may lurk in marijuana policy arguments, as traditional business players, like November’s failed “Responsible Ohio” cartel, push aside bold outlaw entrepreneurs to take the lead in legalization efforts.

Other support for marijuana ads is philosophical. One argument is that marijuana use, in the aggregate, is so beneficial that society should promote it—or at least not suppress it. Another argument is that government shouldn’t have different commercial rules for different legal products. For instance, if you legalize marijuana, treat it like milk. This approach would force government to choose between two extremes—prohibition, or an all-out commercial model. If you distrust government, and want to limit its power, narrowing its options might look like a good idea. But narrowing options might backfire, and prevent any reform, if the public resists radical change.

Free Speech and 280E

It turns out that government’s power to limit advertising of legal products is, in itself, limited. Within living memory, the Supreme Court has extended the First Amendment to “commercial free speech”—like liquor billboards and TV ads. Marijuana is not federally protected yet, because it’s still federally illegal. But that could change. And there’s a pressing, immediate problem: states have their own constitutions with free speech clauses that often say they can’t ban commercial speech outright. So once a state legalizes marijuana, sellers typically have some right to advertise it—thanks to the state’s own Constitution.

Using a state constitutional amendment to legalize marijuana can end state protection for marijuana ads. Colorado’s 2012 amendment, though, wasn’t drafted clearly enough to prevent a state constitutional challenge to some ad restrictions the state is hoping to enforce.

In any event, in most state constitutions, commercial speech isn’t completely protected. Additionally, industry structure can constitutionally discourage aggressive marketing, by restrictive licensing that keeps businesses small, by limiting channels of distribution (so marijuana isn’t sold in convenience stores, for instance), or by allowing sales only in government stores.

But perhaps the most practical tool against marijuana advertising is a tax tool like 280E. Call it the joker in the deck: There is no constitutional right to a tax deduction. A legislature may not be able, constitutionally, to ban commercial speech, but nothing requires a legislature to make selling costs tax-deductible. That is, tax deductions depend on “legislative grace”—the legislative branch can grant them, or deny them. If the First Amendment protected tax deductions, lobbying expenses would be deductible, but they aren’t. In 2014, Republican Way and Means Chair Dave Camp proposed that even standard advertising should not be totally deductible up front—some costs should be “amortized,” or spread out over time, because ads can produce long-term results.

Beyond advertising to marketing

The plot thickens. Even if marijuana ads were totally banned, a tax tool like 280E would come in handy.

So far, it has been easy to use “advertising” as shorthand for “marketing.” Here’s the more nuanced picture: Advertising is just part of marketing, and the real issue is marketing, or selling, writ large—promoting, branding, displaying products, studying consumer behavior, advertising, or otherwise trying to make the sale. 280E makes all those marketing expenses non-deductible—for good or for ill.

Even an outright ad ban, if it were constitutional, wouldn’t discourage the other marketing expenses that 280E disallows.

Retail space is an example. Enterprising businesspeople organize their stores with the natural aim of enticing purchasers. Look at tobacco marketing. Tobacco companies had to sign away their constitutional right to advertising—to settle legal claims about their deception campaign. So now, tobacco sellers try to lure buyers with point-of-sale (POS) “Power Wall” displays in convenience stores. Sure enough, “Empirical studies consistently have found that exposure to POS tobacco product displays are associated with increased initiation among youth and reduced cessation by current smokers.” 280E, by disallowing deductions for renting retail space, and for salaries of retail clerks, takes aim at Power Walls and at all sales efforts, not just at ads.

While marketing feels the pinch of 280E, production doesn’t. So the impact of 280E’s tax policy is focused even within the marijuana industry. By hitting selling costs, 280E hurts primarily stores, not farms. That is, growers don’t suffer much; retailers do. That’s because “cost of goods sold” includes all of a farmer’s expenses of providing the plant (e.g., water, rent, labor, product research, testing, and electricity). That’s all deductible. And a retailer can deduct the amount it pays the grower for product. But the retailer can’t deduct selling costs—advertising, rent, payments to selling personnel, utilities—you name it. That non-deductibility hampers retailing. (Growers, too, can’t deduct advertising, salaries of sales people, or other selling expenses, but those amounts tend to be negligible—except for growers selling directly to consumers.) If it’s selling efforts that are worrisome, 280E’s aim looks pretty true.

Tax policy objections to 280E

To critics, 280E looks more like an awkward workaround of the commercial free speech doctrine than a model of tax policy. Its total denial of deductions doesn’t measure income accurately. That is, a taxpayer hit by 280E pays tax on “phantom income”—that taxpayer’s taxable income is greater than its actual income, because of the deductions that 280E denies. So marijuana selling expenses are treated like bribes, kickbacks, lobbying expenses, and fines—expenses that aren’t deductible, though they are associated with efforts to produce income in a traditional business sense. And 280E encourages weird ploys—entrepreneurial creativity in the face of legal minutae—like retailers having cashiers slowly roll joints when idle. That joint-rolling part of their work is production, not selling, so some of their hourly pay arguably goes into deductible “cost of goods sold” rather than non-deductible selling costs.

And 280E is discriminatory. Other illegal activities—prostitution, cigarette smuggling, gun-running—weren't touched by the 1982 law, only drugs were. (To be clear, those businesses’ marketing expenses tend to be trivial, so this objection is mainly theoretical.)

There’s more. 280E is overbroad in two ways. First, it penalizes advertising that doesn’t persuade, entice, or stoke demand. Ads listing hours of operation, for instance, inform rather than persuade. Second, 280E denies deductions for expenses that have nothing to do with marketing—and discourages activity that may be not be pernicious. For instance, legal and accounting fees are not part of “cost of goods sold,” so they are not deductible (though lawyers and accountants sometimes turn out to be giving business advice). Fine-tuning 280E to try to allow deductions for expenses that don’t directly promote sales would seek fairness—at the expense of simplicity. 280E’s broad brush may be more useful than no brush at all.

In 1982, as Bob Dole’s committee pushed 280E through, all of those objections were available but none prevented passage. Neither did the “belt-and-suspenders” argument—that the belt of criminal laws, including fines, could adequately handle drug dealers, so a tax penalty was like unnecessary suspenders. Now the criminal-law belt is disappearing (as federal prosecutorial discretion lets state-legal marijuana businesses operate), but the tax-law suspenders are still working. Opponents of marijuana have something to hold onto. And one must ask: Is Bob Dole smiling?

Marijuana marketing and beyond—ramifications of 280E

For marijuana, 280E remains a critical check. It pushes marijuana commerce toward a low profile that might thread the needle between opponents and enthusiasts. This is legalizing without publicizing—as proposed in another context, "Does it really matter what these affectionate people do, so long as they don't do it on the street and frighten the horses?" Hiding marijuana use and publicity from youth would suit a lot of parents just fine.

But marijuana, as a public health menace, pales in comparison to alcohol and tobacco. So the tax tool of deduction denial could be used against other problematic marketing efforts. The American Medical Association opposes direct-to-consumer advertising of prescription drugs—like the Viagra ads Bob Dole appeared in after his turn as Republican Presidential nominee in 1996. A middle-ground compromise would deny tax deductions for those ads. 280E’s broad anti-deduction rule would even make those cigarette-selling Power Walls more expensive, after tax. And one study says denying tax deductions for alcohol ads would save 1,300 lives a year.

Now what?

Let’s face it: Marijuana, when it’s legal, is going to be taxed. Even tax opponent Grover Norquist says marijuana taxes won’t violate his no-tax pledge. And 280E-style taxes discouraging advertising will be only secondary. The main taxes will eventually be measured by weight, price, or area under cultivation—or maybe by amount of THC, the primary intoxicant. Or hothouses’ electricity use could be taxed—to encourage outdoor growing. Or all of those taxes could be applied.

As legalization and taxation of marijuana advance, repeal or amendment of 280E would be difficult. (Normalizing banking rules for the marijuana industry is a no-brainer, by comparison.) As a practical matter, cutting taxes is hard in a time of deficits, particularly on a perceived vice. Repeal would be a revenue loser, and would have to be paid for—unless advocates steamroll repeal through, saying, “Deficits don’t matter.” The obvious way to pay for repeal of 280E is a federal marijuana excise tax. A federal excise tax could mean a higher tax burden overall for the industry. That result could be lose-lose: Higher taxes would hurt the industry, while repeal of 280E would encourage marijuana marketing, to the likely detriment of youth and excessive users.

And 280E has a surprising advantage over other possible federal marijuana taxes. Decades-old multilateral narcotics treaties make it awkward for the federal government to tax marijuana. Uruguay, Jamaica, Canada, and other countries may violate those treaties, but still. Any explicit new federal excise tax would look like full-blown legalization—creating a treaty problem. 280E is not part of legalization. On the contrary, Bob Dole’s tax penalty is consistent with illegality of marijuana. 280E brings in revenue but doesn't violate treaties. What a deal.

Meanwhile, what about those state income tax 280E analogues that became state law automatically? My friends who chaired California’s Blue Ribbon Commission on marijuana legalization looked at the partial 280E analogue there, and say that denying “regular business tax deductions . . . at the outset may be too onerous.” Indeed, it makes sense to ratchet marijuana excise taxes up over time, as the industry matures, and as pre-tax prices fall. But a 280E-type rule, nudging against advertising and marketing, may be the first tax you want to apply. As Bob Dole did.

So a 280E-style tax nudge can restrict marijuana marketing and throw sand in the gears of Big Marijuana. Meanwhile, bigger menaces, Big Alcohol and Big Tobacco, get to deduct every penny they can spend to promote sales. The commercial free speech doctrine may let sellers advertise and promote those products, but we don’t have to subsidize those sellers with tax deductions. So here’s a concluding thought: Try to extend 280E to the deadlier duo—alcohol and tobacco. Maybe give direct-to-consumer pharmaceutical ads the same treatment. But whatever you do, keep the 280E rule for marijuana marketing. If you can’t stop it, you can at least slow it down.

Ohio’s Issue 3, which would have made the bellwether state just the fifth in the country to provide a legal market for marijuana, was decisively rejected by voters on Tuesday by an almost 2-1 margin. (For background on the peculiarities of this proposed state constitutional amendment, see my post describing the audacious business plan of its backers, united as “ResponsibleOhio.”) As John Hudak explained last night, it’s wise to resist drawing any sweeping conclusions from this vote: given the characteristics of the Ohio off-off year electorate, it was going to take an extraordinary turnout effort, especially among younger voters, to secure a win for legalization. Despite the hard work of Issue 3’s most recognizable champion, Buddie the marijuana mascot, as well as celebrity ads from the likes of NBA legend Oscar Robertson, we can now say that ResponsibleOhio made an epic miscalculation in imagining that they could control Ohio’s voter-initiated constitutional amendment process so brazenly.

Does that make Tuesday a good day for direct democracy? After all, predictions that voters in an off-cycle could be overwhelmed by moneyed interests—ResponsibleOhio was reported to be targeting $20 million in campaign spending going into the vote—turned out to be wrong. Ohioans, or at least those that turned out for this election, proved resistant to manipulation, demonstrating the integrity of the ballot initiative process.

There is something to that, but it is far from the whole story. For one thing, in spite of the clear margin of defeat for Issue 3, it is extremely difficult to say why the measure failed. Was it simply because of the composition of the voting electorate? Was it the unprecedented big-business orientation of ResponsibleOhio’s approach to legalization? Was it just that Ohioans don’t want legal marijuana in their heart of hearts, regardless of what they tell pollsters? We will never be able to say for sure, and so narratives about “voter integrity” writ large are very hard to evaluate.

There is also a case to be made that it was Issue 3’s opponents who managed to successfully manipulate the initiative process successfully. First, they managed to get Issue 2, titled “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit,” on the ballot through the legislature. Second, because the ballot board itself was hostile to Issue 3, they managed to give it a distinctly unflattering title: “Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes.” Because voters have an instinctive dislike of monopolies, Ohio State law professor Daniel Tokaji argued that they were essentially faced with two questions on Issue 2 and Issue 3 respectively: “Do you like puppies?” and “Do you hate puppies?” At an event last Friday, he very confidently predicted that, given these framings, Issue 2 would pass while Issue 3 would fail, and he was correct.

Tokaji also warned that Issue 2 would effectively be empowering the Ohio Ballot Board—which is dominated by the Ohio Secretary of State, a partisan elected official—to further manipulate ballot issues in the future. With Issue 2 passed and Section 1e of Article II of Ohio’s constitution amended, the Ballot Board is now in a position to judge whether a proposed amendment would “would grant or create a monopoly, oligopoly, or cartel, specify or determine a tax rate, or confer a commercial interest, commercial right, or commercial license to any person, nonpublic entity, or group of persons or nonpublic entities, or any combination thereof, however organized, that is not then available to other similarly situated persons or nonpublic entities.” If they decide yes, then voters must simultaneously pass two ballot issues to make the change: one to certify that they would like to override the anti-monopoly provision, and one for the substance of the amendment itself. Presumably, the former would be difficult to overcome, meaning that the Ohio Ballot Board is now in a much stronger position to hinder passage of constitutional amendments it does not like.

In other words, direct democracy in Ohio just got a little less direct and more mediated. For strong believers in the ability of voters to think cogently about issues on their own and effect positive changes through direct political action, that will seem like a loss. For those of us who are skeptical of direct democracy and in most instances would prefer legislatures to be the forum for political decision-making, perhaps that doesn’t sound so bad.

The four states that have legalized recreational marijuana to this point (Colorado, Washington, Alaska, and Oregon) have all acted through voter referenda. Importantly, Colorado acted through state constitutional amendment while each of the other three used initiative processes that ended up amending their state statutory codes rather than the state constitution; as a result, it will be somewhat more difficult for Colorado legislators to make any adjustments to their policy framework if doing so becomes necessary. Ohio’s strange system under the ResponsibleOhio regime would have been similarly inflexible.

It is possible that we will soon see a legislature—Vermont’s—tackle the question of marijuana legalization head-on, rather than waiting to be forced by voters. For an issue with as many moving pieces as creating a legal and regulated marketplace for marijuana, there are good reasons to think that legislatures have some natural advantages, and we will see if Vermont’s statehouse takes the chance to become a national leader.

Regardless of whether that happens, though, marijuana legalization is deeply wedded to direct democracy mechanisms for the moment, with 2016 ballot initiatives likely to pose a critical test for the movement.

Authors

Ohio’s Issue 3, which would have made the bellwether state just the fifth in the country to provide a legal market for marijuana, was decisively rejected by voters on Tuesday by an almost 2-1 margin. (For background on the peculiarities of this proposed state constitutional amendment, see my post describing the audacious business plan of its backers, united as “ResponsibleOhio.”) As John Hudak explained last night, it’s wise to resist drawing any sweeping conclusions from this vote: given the characteristics of the Ohio off-off year electorate, it was going to take an extraordinary turnout effort, especially among younger voters, to secure a win for legalization. Despite the hard work of Issue 3’s most recognizable champion, Buddie the marijuana mascot, as well as celebrity ads from the likes of NBA legend Oscar Robertson, we can now say that ResponsibleOhio made an epic miscalculation in imagining that they could control Ohio’s voter-initiated constitutional amendment process so brazenly.

Does that make Tuesday a good day for direct democracy? After all, predictions that voters in an off-cycle could be overwhelmed by moneyed interests—ResponsibleOhio was reported to be targeting $20 million in campaign spending going into the vote—turned out to be wrong. Ohioans, or at least those that turned out for this election, proved resistant to manipulation, demonstrating the integrity of the ballot initiative process.

There is something to that, but it is far from the whole story. For one thing, in spite of the clear margin of defeat for Issue 3, it is extremely difficult to say why the measure failed. Was it simply because of the composition of the voting electorate? Was it the unprecedented big-business orientation of ResponsibleOhio’s approach to legalization? Was it just that Ohioans don’t want legal marijuana in their heart of hearts, regardless of what they tell pollsters? We will never be able to say for sure, and so narratives about “voter integrity” writ large are very hard to evaluate.

There is also a case to be made that it was Issue 3’s opponents who managed to successfully manipulate the initiative process successfully. First, they managed to get Issue 2, titled “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit,” on the ballot through the legislature. Second, because the ballot board itself was hostile to Issue 3, they managed to give it a distinctly unflattering title: “Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes.” Because voters have an instinctive dislike of monopolies, Ohio State law professor Daniel Tokaji argued that they were essentially faced with two questions on Issue 2 and Issue 3 respectively: “Do you like puppies?” and “Do you hate puppies?” At an event last Friday, he very confidently predicted that, given these framings, Issue 2 would pass while Issue 3 would fail, and he was correct.

Tokaji also warned that Issue 2 would effectively be empowering the Ohio Ballot Board—which is dominated by the Ohio Secretary of State, a partisan elected official—to further manipulate ballot issues in the future. With Issue 2 passed and Section 1e of Article II of Ohio’s constitution amended, the Ballot Board is now in a position to judge whether a proposed amendment would “would grant or create a monopoly, oligopoly, or cartel, specify or determine a tax rate, or confer a commercial interest, commercial right, or commercial license to any person, nonpublic entity, or group of persons or nonpublic entities, or any combination thereof, however organized, that is not then available to other similarly situated persons or nonpublic entities.” If they decide yes, then voters must simultaneously pass two ballot issues to make the change: one to certify that they would like to override the anti-monopoly provision, and one for the substance of the amendment itself. Presumably, the former would be difficult to overcome, meaning that the Ohio Ballot Board is now in a much stronger position to hinder passage of constitutional amendments it does not like.

In other words, direct democracy in Ohio just got a little less direct and more mediated. For strong believers in the ability of voters to think cogently about issues on their own and effect positive changes through direct political action, that will seem like a loss. For those of us who are skeptical of direct democracy and in most instances would prefer legislatures to be the forum for political decision-making, perhaps that doesn’t sound so bad.

The four states that have legalized recreational marijuana to this point (Colorado, Washington, Alaska, and Oregon) have all acted through voter referenda. Importantly, Colorado acted through state constitutional amendment while each of the other three used initiative processes that ended up amending their state statutory codes rather than the state constitution; as a result, it will be somewhat more difficult for Colorado legislators to make any adjustments to their policy framework if doing so becomes necessary. Ohio’s strange system under the ResponsibleOhio regime would have been similarly inflexible.

It is possible that we will soon see a legislature—Vermont’s—tackle the question of marijuana legalization head-on, rather than waiting to be forced by voters. For an issue with as many moving pieces as creating a legal and regulated marketplace for marijuana, there are good reasons to think that legislatures have some natural advantages, and we will see if Vermont’s statehouse takes the chance to become a national leader.

Regardless of whether that happens, though, marijuana legalization is deeply wedded to direct democracy mechanisms for the moment, with 2016 ballot initiatives likely to pose a critical test for the movement.

Authors

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http://www.brookings.edu/blogs/fixgov/posts/2015/11/03-ohio-legalization-marijuana-ballot-initiative-hudak?rssid=marijuana+legalization{1DE4D9C6-78C8-4D18-A408-2CA10603EB8F}http://webfeeds.brookings.edu/~/122173117/0/brookingsrss/topics/marijuanalegalization~Ohios-failure-to-legalize-marijuana-tells-us-little-about-reform-and-less-about-the-futureOhio's failure to legalize marijuana tells us little about reform, and less about the future

Tonight, Ohio voters rejected Issue 3, a referendum on recreational marijuana legalization. The ballot measure served as the only statewide marijuana measure to appear in 2015 and is the first defeat for marijuana advocates since Florida narrowly rejected medical marijuana last November. It is the first loss for a recreational legalization initiative since 2012.

For the marijuana reform community, Ohio’s rejection of the ballot measure is a setback, but the post-mortem on this referendum isn’t all that damning for the activist community. There were plenty of reasons why Ohio’s measure faced an uphill battle, and the forces of defeat had more to do with timing, referendum language, demographics, and other ballot initiatives than it did with public opinion on the issue.

Let’s breakdown some of the hurdles facing Ohio’s legalization initiative.

1. Timing matters for ballot initiatives

Ballot measures are sensitive to turnout not just in terms of the total number of voters, but also the makeup of the electorate. As a result, referendum sponsors often try to run a ballot initiative when the voting base is most likely to support them. Colorado and Washington didn’t vote on Amendment 64 and Initiative 502, respectively, in 2012 by happenstance. The groups pushing for marijuana reform recognized that their success depended heavily on turnout among young voters and liberal voters (though marijuana initiatives do appeal to other demographic groups as well). In presidential election years, younger and liberal voters turn out in much higher numbers than they do in other years.

In fact, despite their ultimate success, last year’s reform efforts in Oregon and Alaska were seen as risky because they were timed with a midterm election—where turnout is substantially lower, older, whiter, and more conservative than in presidential years. In fact, the midterm-rather-than-presidential timing is likely the major reason a 2014 medical marijuana initiative in Florida narrowly failed to reach the needed 60 percent threshold for passage. Supporters are more confident in Florida’s chance of reform next year.

Ohio reformers picked the worst time to run an initiative—an “off-off” year. Other than ballot initiatives, Ohioans largely went to the polls to vote for municipal leaders. There were no races for president, senator, congressman, governor, or even state legislator. Turnout in off-off years is notoriously low and tends to skew older and more conservative—marijuana reform’s biggest skeptics. It is not to say that reform would have surely been successful in a presidential year, but you can be certain support for Issue 3 would have been higher in 2016 than it was tonight.

2. A different kind of state

The states that have previously legalized recreational marijuana—Colorado, Washington, Oregon, and Alaska—look very different than Ohio. Colorado, Washington, and Oregon blend a unique brand of liberalism with a staunch, frontiersman libertarianism to create a coalition to reform marijuana laws. Alaska capitalizes on a long history of moderate views on marijuana, a younger than average population, and an even stronger libertarian identity. Even the District of Columbia, which passed a ballot measure legalizing marijuana in 2014, is unique in that it is the most Democratic-voting entity in the U.S. that casts Electoral College votes.

Ohio is bigger, more diverse, and more politically competitive. The Democratic Party in the state isn’t driven by the type of Portland-Denver-Seattle liberalism; it’s union-centered and ethnic. The Republican Party in Ohio is more traditionally conservative and/or religious, not dominated by Western-style libertarianism. Ohio is a typical Midwestern state, not known for being a leading indicator of social change. Ohio’s rejection of legal marijuana was not the signal of a country shifting the winds on marijuana reform; it was a signal of a less progressive state not yet ready to move forward with reform—or with this specific reform.

3. A state with no medical history

Issue 3 sought to legalize marijuana in an unprecedented way: without first experimenting with medical marijuana. Many in the reform movement have pointed to existing medical marijuana systems as evidence that some form of legal marijuana does not usher in the end of times. That tactic is an effective way to diminish voter skepticism by reminding them of their own observations. Ohio, however, has no existing medical marijuana system. The lack of familiarity with medical marijuana surely increased the level of skepticism among some voters, and skeptical voters are voters who favor the status quo. In the case of marijuana, the status quo is prohibition and a “no’ vote on Issue 3.

4. A controversial market structure

Ohio’s initiative was structured in a very unique and unprecedented way. The constitutional amendment listed 10 plots of land throughout the state on which marijuana could be grown. These 10 plots were to be exclusive (the only additions could have come if the state determined those 10 grow operations did not meet state demand). The amendment would have created very high-value real estate and grow rights that would have shaped the nature of the market and made a small group of landowners quite wealthy in the process. Marijuana grown at these sites would have been sold to more than 1000 licensed dispensaries throughout the state. The marijuana monopoly—or more aptly, oligopoly—was not only controversial to voters, but became divisive even within the marijuana reform community. Some groups voiced opposition to the measure because of this structure. Some other national reform groups gave only tepid endorsements of the measure, supporting reform over the status quo but with reservations about the details of this proposal. Policy reform is difficult to enact. On issues of controversy or that seek to reverse decades of institutionalized policy, it is even harder. When the advocacy community around the issue is divided, the chance of successful reform is greatly diminished. Responsible Ohio—the organization that authored the ballot initiative—was never able to consolidate the marijuana reform community inside or outside Ohio, and the ballot measure’s fate was dramatically affected by it.

5. A conflicting ballot measure

Ohioans voted on multiple ballot initiatives—not simply legalization (Issue 3). Another ballot measure, Issue 2, was odd—not necessarily in itself—but because it appeared right beside the legalization initiative. Issue 2 amended the constitution to ban monopolies. The measure is titled, “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit” and the first bullet point explaining the initiative reads that the amendment would, “[p]rohibit any petitioner from using the Ohio Constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit or to establish a preferential tax status.” In effect, Ohio voters were asked on one measure to ban ballot initiative-created oligopolies and on another to create a marijuana oligopoly. In some ways Issue 2 served as inside-the-polling-booth negative advertising for Issue 3.

Ohio will not rollout legal marijuana just yet, and tonight’s results suggest that successful strategy (time, place, language, structure) is as important, or more so, than tens of millions of dollars in funding support. Ohio’s rejection of Issue 3 is not a death knell for the marijuana reform and activist communities. In fact, I’m certain there are reform-minded individuals and organizations around the country that will be quietly pleased—or at least not shed tears—that Issue 3 failed, knowing that eventually another initiative, written in another way, on the ballot in another year, will likely pass.

I have written previously that the success of previous marijuana reform ballot initiatives was due in part to the professionalization of the reform community, hiring political strategists, lawyers, lobbyists, communications professionals, and others to join issue-driven activists in the fight for their cause. The failure of Issue 3 was a failure by Responsible Ohio to implement an effective political strategy that is sensitive to the challenges facing referenda.

The “big” takeaway from tonight’s rejection of legalization is this: don’t run a controversial marijuana initiative in Ohio in an off-off year. Anyone who suggests Ohio’s decision tells us anything about the success or failure of initiatives in 2016 is just blowing smoke.

Authors

Tonight, Ohio voters rejected Issue 3, a referendum on recreational marijuana legalization. The ballot measure served as the only statewide marijuana measure to appear in 2015 and is the first defeat for marijuana advocates since Florida narrowly rejected medical marijuana last November. It is the first loss for a recreational legalization initiative since 2012.

For the marijuana reform community, Ohio’s rejection of the ballot measure is a setback, but the post-mortem on this referendum isn’t all that damning for the activist community. There were plenty of reasons why Ohio’s measure faced an uphill battle, and the forces of defeat had more to do with timing, referendum language, demographics, and other ballot initiatives than it did with public opinion on the issue.

Let’s breakdown some of the hurdles facing Ohio’s legalization initiative.

1. Timing matters for ballot initiatives

Ballot measures are sensitive to turnout not just in terms of the total number of voters, but also the makeup of the electorate. As a result, referendum sponsors often try to run a ballot initiative when the voting base is most likely to support them. Colorado and Washington didn’t vote on Amendment 64 and Initiative 502, respectively, in 2012 by happenstance. The groups pushing for marijuana reform recognized that their success depended heavily on turnout among young voters and liberal voters (though marijuana initiatives do appeal to other demographic groups as well). In presidential election years, younger and liberal voters turn out in much higher numbers than they do in other years.

In fact, despite their ultimate success, last year’s reform efforts in Oregon and Alaska were seen as risky because they were timed with a midterm election—where turnout is substantially lower, older, whiter, and more conservative than in presidential years. In fact, the midterm-rather-than-presidential timing is likely the major reason a 2014 medical marijuana initiative in Florida narrowly failed to reach the needed 60 percent threshold for passage. Supporters are more confident in Florida’s chance of reform next year.

Ohio reformers picked the worst time to run an initiative—an “off-off” year. Other than ballot initiatives, Ohioans largely went to the polls to vote for municipal leaders. There were no races for president, senator, congressman, governor, or even state legislator. Turnout in off-off years is notoriously low and tends to skew older and more conservative—marijuana reform’s biggest skeptics. It is not to say that reform would have surely been successful in a presidential year, but you can be certain support for Issue 3 would have been higher in 2016 than it was tonight.

2. A different kind of state

The states that have previously legalized recreational marijuana—Colorado, Washington, Oregon, and Alaska—look very different than Ohio. Colorado, Washington, and Oregon blend a unique brand of liberalism with a staunch, frontiersman libertarianism to create a coalition to reform marijuana laws. Alaska capitalizes on a long history of moderate views on marijuana, a younger than average population, and an even stronger libertarian identity. Even the District of Columbia, which passed a ballot measure legalizing marijuana in 2014, is unique in that it is the most Democratic-voting entity in the U.S. that casts Electoral College votes.

Ohio is bigger, more diverse, and more politically competitive. The Democratic Party in the state isn’t driven by the type of Portland-Denver-Seattle liberalism; it’s union-centered and ethnic. The Republican Party in Ohio is more traditionally conservative and/or religious, not dominated by Western-style libertarianism. Ohio is a typical Midwestern state, not known for being a leading indicator of social change. Ohio’s rejection of legal marijuana was not the signal of a country shifting the winds on marijuana reform; it was a signal of a less progressive state not yet ready to move forward with reform—or with this specific reform.

3. A state with no medical history

Issue 3 sought to legalize marijuana in an unprecedented way: without first experimenting with medical marijuana. Many in the reform movement have pointed to existing medical marijuana systems as evidence that some form of legal marijuana does not usher in the end of times. That tactic is an effective way to diminish voter skepticism by reminding them of their own observations. Ohio, however, has no existing medical marijuana system. The lack of familiarity with medical marijuana surely increased the level of skepticism among some voters, and skeptical voters are voters who favor the status quo. In the case of marijuana, the status quo is prohibition and a “no’ vote on Issue 3.

4. A controversial market structure

Ohio’s initiative was structured in a very unique and unprecedented way. The constitutional amendment listed 10 plots of land throughout the state on which marijuana could be grown. These 10 plots were to be exclusive (the only additions could have come if the state determined those 10 grow operations did not meet state demand). The amendment would have created very high-value real estate and grow rights that would have shaped the nature of the market and made a small group of landowners quite wealthy in the process. Marijuana grown at these sites would have been sold to more than 1000 licensed dispensaries throughout the state. The marijuana monopoly—or more aptly, oligopoly—was not only controversial to voters, but became divisive even within the marijuana reform community. Some groups voiced opposition to the measure because of this structure. Some other national reform groups gave only tepid endorsements of the measure, supporting reform over the status quo but with reservations about the details of this proposal. Policy reform is difficult to enact. On issues of controversy or that seek to reverse decades of institutionalized policy, it is even harder. When the advocacy community around the issue is divided, the chance of successful reform is greatly diminished. Responsible Ohio—the organization that authored the ballot initiative—was never able to consolidate the marijuana reform community inside or outside Ohio, and the ballot measure’s fate was dramatically affected by it.

5. A conflicting ballot measure

Ohioans voted on multiple ballot initiatives—not simply legalization (Issue 3). Another ballot measure, Issue 2, was odd—not necessarily in itself—but because it appeared right beside the legalization initiative. Issue 2 amended the constitution to ban monopolies. The measure is titled, “Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit” and the first bullet point explaining the initiative reads that the amendment would, “[p]rohibit any petitioner from using the Ohio Constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit or to establish a preferential tax status.” In effect, Ohio voters were asked on one measure to ban ballot initiative-created oligopolies and on another to create a marijuana oligopoly. In some ways Issue 2 served as inside-the-polling-booth negative advertising for Issue 3.

Ohio will not rollout legal marijuana just yet, and tonight’s results suggest that successful strategy (time, place, language, structure) is as important, or more so, than tens of millions of dollars in funding support. Ohio’s rejection of Issue 3 is not a death knell for the marijuana reform and activist communities. In fact, I’m certain there are reform-minded individuals and organizations around the country that will be quietly pleased—or at least not shed tears—that Issue 3 failed, knowing that eventually another initiative, written in another way, on the ballot in another year, will likely pass.

I have written previously that the success of previous marijuana reform ballot initiatives was due in part to the professionalization of the reform community, hiring political strategists, lawyers, lobbyists, communications professionals, and others to join issue-driven activists in the fight for their cause. The failure of Issue 3 was a failure by Responsible Ohio to implement an effective political strategy that is sensitive to the challenges facing referenda.

The “big” takeaway from tonight’s rejection of legalization is this: don’t run a controversial marijuana initiative in Ohio in an off-off year. Anyone who suggests Ohio’s decision tells us anything about the success or failure of initiatives in 2016 is just blowing smoke.

Authors

]]>
http://www.brookings.edu/blogs/brookings-now/posts/2015/11/brookings-film-federal-government-failing-americans-marijuana-policy?rssid=marijuana+legalization{F3BE47EA-13A5-4163-929A-7DFFF2ADEE16}http://webfeeds.brookings.edu/~/122505067/0/brookingsrss/topics/marijuanalegalization~Brookings-film-explores-how-the-federal-government-is-failing-Americans-on-marijuana-policyBrookings film explores how the federal government is failing Americans on marijuana policy

Nearly 150 million Americans live in states with full medical marijuana programs, and over 17 million live in states with legal recreational marijuana. Yet, according to Governance Studies Fellow John Hudak, the federal government lags behind in its policies and regulations governing marijuana use and research.

A new Brookings short film examines the convoluted state of marijuana policy, and illustrates the human consequences of laws that limit the research and availability of medical cannabis (CBD). In a scene shot at a marijuana growing facility, the facility operator explains the motivations behind his family's business: “We talk to mothers that have epileptic children, kids who have 50 seizures a day. And with the CBD medicine we make, they went from 50 to zero. Zero seizures. They’re in school, they’re playing soccer. To see the emotion that comes from that was a big impetus for us.” Rabbi Jeffrey Kahn who operates the dispensary in the nation's capital that is also featured in the film, reports that “We see people with just about every condition from just about every walk of life who find relief from medical marijuana.”

What’s at stake in the war on marijuana?

Federal policies governing cannabis use and research in the United States are contradictory, explains Hudak. With marijuana classified as a Schedule I substance, along with heroin and ecstasy, the federal government “makes medical research on a product that is continually and frequently prescribed for medicinal use all that much harder.”

In addition, the U.S. Department of Justice considers marijuana enterprises legal to operate as long as they obey state regulations and other laws, while the Internal Revenue Service considers them to be criminal organizations. “The Department of Justice and the IRS are right across the street from each other in Washington, DC, but on policy they are miles apart,” Hudak says. “Which one is right? Right now, it's both,” he adds, before imploring the president, Congress, and federal officials to “take ownership of the disconnected set of policies, laws, and regulations that make it confusing for states and for marijuana enterprises to go on.”

“Either marijuana is illegal, or it’s legal and regulated. But it can’t be both,” Hudak declares.

Read more from Brookings experts about marijuana policy and regulatory reform:

Video

Authors

Fred Dews

]]>
Tue, 03 Nov 2015 15:43:00 -0500Fred Dews

Nearly 150 million Americans live in states with full medical marijuana programs, and over 17 million live in states with legal recreational marijuana. Yet, according to Governance Studies Fellow John Hudak, the federal government lags behind in its policies and regulations governing marijuana use and research.

A new Brookings short film examines the convoluted state of marijuana policy, and illustrates the human consequences of laws that limit the research and availability of medical cannabis (CBD). In a scene shot at a marijuana growing facility, the facility operator explains the motivations behind his family's business: “We talk to mothers that have epileptic children, kids who have 50 seizures a day. And with the CBD medicine we make, they went from 50 to zero. Zero seizures. They’re in school, they’re playing soccer. To see the emotion that comes from that was a big impetus for us.” Rabbi Jeffrey Kahn who operates the dispensary in the nation's capital that is also featured in the film, reports that “We see people with just about every condition from just about every walk of life who find relief from medical marijuana.”

What’s at stake in the war on marijuana?

Federal policies governing cannabis use and research in the United States are contradictory, explains Hudak. With marijuana classified as a Schedule I substance, along with heroin and ecstasy, the federal government “makes medical research on a product that is continually and frequently prescribed for medicinal use all that much harder.”

In addition, the U.S. Department of Justice considers marijuana enterprises legal to operate as long as they obey state regulations and other laws, while the Internal Revenue Service considers them to be criminal organizations. “The Department of Justice and the IRS are right across the street from each other in Washington, DC, but on policy they are miles apart,” Hudak says. “Which one is right? Right now, it's both,” he adds, before imploring the president, Congress, and federal officials to “take ownership of the disconnected set of policies, laws, and regulations that make it confusing for states and for marijuana enterprises to go on.”

“Either marijuana is illegal, or it’s legal and regulated. But it can’t be both,” Hudak declares.

Read more from Brookings experts about marijuana policy and regulatory reform:

On Wednesday night, Democratic presidential candidate Bernie Sanders announced a proposal to dramatically shift marijuana policy in the United States. At a campaign stop in Virginia, Sen. Sanders announced he would be proposing new legislation in the coming weeks to remove cannabis from the list of Controlled Substances—a move many call “descheduling.” In many ways, this would be the most aggressive change—short of national legalization—that Congress could make, and Sanders is the most prominent official in the United States to support such a move. There is a bit we know about what this proposal could mean, and there is much we don’t quite yet know. Let’s break down each.

What do we know about Sanders’ descheduling proposal?

1. Legislation is the easiest way to change drug scheduling

Sen. Sanders’ proposal will come not from his ambition to become president, but from the office he currently holds: Senator. This effort will actually be more efficient than the executive action route, as I have written previously with Grace Wallack. Congress has within its power to amend the Controlled Substances Act and reschedule a substance or remove it entirely from the jurisdiction of that law. The video below explores the current web of policy and regulation surrounding marijuana and also illustrates the paths toward reform.

What’s at stake in the war on marijuana?

2. If passed, most states would automatically follow suit…maybe…

Under the Uniform Controlled Substances Act, most states have a procedure in place for changing state law in tandem with federal policy if the federal government makes changes to the scheduling of a substance. That process is largely automatic within a given timeframe. The catch? It is subject to an appeal from an interested party or concerned citizen—appeals that are guaranteed due process. One can be certain several states will see appeals, but there is no doubt the shift in federal policy would have a ripple effect on state scheduling policy.

3. It would transform the marijuana industry

By descheduling marijuana, marijuana enterprises would see substantial economic benefits. They would no longer run into challenges accessing financial tools like bank accounts, lines of credit, business loans, mortgages, etc. Currently, the Federal Reserve and financial regulations bar banks from working with organizations that traffic in illegal substances. Given marijuana’s scheduling status, those regulations hinder (some argue cripple) the marijuana industry, severely limiting growth and creating serious safety and security concerns associated with a cash-only business model. Washington Post’s Chris Ingraham noted the importance of this change and the added benefit of marijuana enterprises being able to access typical business tax benefits, as well. It would certainly translate into growth, profits, employment expansion, and reduced costs for the industry.

4. It would likely spur research

Grace Wallack and I noted in our recent paper that the categorization of marijuana as a Schedule I substance seriously hindered research on the medicinal benefits of the drug. In terms of access to product, licensure requirements, and ingrained cultural barriers, the scheduling status and the U.S. government’s historically unique treatment of cannabis created barriers to conducting research on the drug.

5. It would not legalize marijuana nationally

For all the talk about Bernie Sanders being a passionate socialist (some of that rhetoric coming from the candidate himself), his proposal is very small-government conservative. This congressional action would not lead to huge federally-owned marijuana grows and national marijuana dispensaries. The amendment to the Controlled Substances Act would simply reduce the federal role in the regulation and criminalization of marijuana, and leave greater discretion to states. More marijuana enterprises will surely pop up in more (new) states.

What we don’t know about Sanders’ descheduling proposal

6. What are the details of descheduling?

The chance of success for any policy proposal depends on the details, and in due deference to Sen. Sanders, we only know the broad outline of his new marijuana proposal. Until he issues a policy brief, a more detailed press release, or files legislation in the Senate, we are left to guess the specifics that fall under the broad heading of “descheduling.” What we do know is that descheduling would greatly reduce the federal government’s ability to regulate marijuana. Surely, Sen. Sanders does not want marijuana to be a wholly unregulated product, and so it will be interesting to see whether his bill sets up a federal regulatory framework, leaves all such issues up to the states, or forges some other regulatory alternative.

7. How does this law get passed?

At the federal level, marijuana reform supporters have had significant success over the past few years, particularly in the U.S. House. Some legislative reforms have even managed to pass into law, typically as riders to more significant legislation. Each of those efforts has been smaller or more targeted in nature—and moderate in effect. More significant, comprehensive proposals such as the CARERS Act have hit roadblocks in the legislative process. It is unclear what path to passage Sen. Sanders sees for a more aggressive and blunt policy reform. It will need to find 60 votes in the Senate to overcome a filibuster; it will need to be placed on the House calendar by a new Speaker of the House who has indicated (through rhetoric and a voting record) opposition to even medical marijuana reform; it will then need to pass the House of Representatives that has rejected or blocked even more moderate reform measures during this Congress; and it would need to be signed by a president whose public views on marijuana policy have not gone as far as this proposal. In that environment, Sanders’ plan seems to be a “hope raiser,” not a “policy changer.”

8. Would his marijuana reform ideas follow him to the White House?

Let’s assume Sanders’ legislative proposal fails to pass—a safe assumption given the barriers discussed above. Let’s further assume Sanders is elected president in 2016. Is this descheduling reform one that he would plan to pursue as president?

A President Sanders would be well within his authority to initiate the process to review cannabis’ scheduling classification, but using administrative authority to achieve full descheduling would be an uphill battle, requiring buy-in from various agency heads. And, as a new president, he would have the opportunity to select new administration officials who would be positioned to advance such a cause. Would he use this issue as a litmus test in selecting a new Attorney General, FDA Commissioner, DEA Administrator, and Secretary of Health and Human Services?

9. Will he pressure President Obama?

From his perch in the Senate and as a candidate for the White House, Sanders has a louder microphone than at any other time in his career. It is worth asking whether he will use that platform to push the president and other administration officials to support his proposal. Obama’s support could come through a commitment to sign it, efforts to pressure Congress to pass it, a willingness to allow it to be inserted as a rider into other legislation, etc.

10. Will Sanders go it alone in Congress?

It is unclear how effective Sen. Sanders will be at rounding up co-sponsors for this legislation. Co-sponsorship on many bills is hard to come by. That difficulty is enhanced for comprehensive, controversial, drastic policy reform. Ask lobbyists in the marijuana reform community and they will tell you that cosponsorship is critical and—depending on the reform proposal—can be hard to find. Presidential election years tend to make House members and Senators facing reelection more cautious and risk-averse, further complicating support. And frankly, few election-driven, majority members of a Republican-controlled Congress are looking for opportunities to work publicly with a self-described socialist—no matter a presidential candidate for the opposing party.

11. Will he change the Democratic debate?

Sanders’ proposal surges to the left of fellow Democratic presidential candidates Hillary Clinton and Martin O’Malley. Will Sanders use future debate stages, media appearances, and public events to push the Democratic field on the issue of marijuana reform? Will he motivate Clinton to clarify what has thus far been a vague stance on the issue or O’Malley to re-assess his comparatively moderate reform position (decriminalization + rescheduling)?

12. What motivated Sanders’ change of heart on marijuana policy?

Sanders often promotes his own policy consistency, particularly when contrasting himself with Clinton. He recently noted in an appearance on Charlie Rose, “there are real differences between Hillary Clinton and myself. I have been extremely consistent on my views for many, many years.” However, it’s not clear he has been consistent on marijuana policy, even over the past few months. In June, he dodged a question on legalization, saying of marijuana, “It’s not my thing…” and went on to voice a different concern: “If you talk to law enforcement folks, what they worry about is they see this as an entry level drug, which leads to coke, which leads to heroin.”

A few weeks ago, in the first Democratic debate, Sanders signaled a bit of issue evolution, saying that as a voter he would likely vote for a legalization initiative. In this week’s shift, he has staked out the most reform-oriented position on the issue in the 2016 field—and in his own career. Surely, the underlying issues he cites—arrest rates, incarceration rates, and racial justice—have not changed since June. What has changed is Sanders’ position on the issue. What is interesting now is if Sanders’ change in rhetoric will also change the conversation about marijuana reform in the presidential race, in the halls of Congress, and around dinner tables across America.

Video

Authors

On Wednesday night, Democratic presidential candidate Bernie Sanders announced a proposal to dramatically shift marijuana policy in the United States. At a campaign stop in Virginia, Sen. Sanders announced he would be proposing new legislation in the coming weeks to remove cannabis from the list of Controlled Substances—a move many call “descheduling.” In many ways, this would be the most aggressive change—short of national legalization—that Congress could make, and Sanders is the most prominent official in the United States to support such a move. There is a bit we know about what this proposal could mean, and there is much we don’t quite yet know. Let’s break down each.

What do we know about Sanders’ descheduling proposal?

1. Legislation is the easiest way to change drug scheduling

Sen. Sanders’ proposal will come not from his ambition to become president, but from the office he currently holds: Senator. This effort will actually be more efficient than the executive action route, as I have written previously with Grace Wallack. Congress has within its power to amend the Controlled Substances Act and reschedule a substance or remove it entirely from the jurisdiction of that law. The video below explores the current web of policy and regulation surrounding marijuana and also illustrates the paths toward reform.

What’s at stake in the war on marijuana?

2. If passed, most states would automatically follow suit…maybe…

Under the Uniform Controlled Substances Act, most states have a procedure in place for changing state law in tandem with federal policy if the federal government makes changes to the scheduling of a substance. That process is largely automatic within a given timeframe. The catch? It is subject to an appeal from an interested party or concerned citizen—appeals that are guaranteed due process. One can be certain several states will see appeals, but there is no doubt the shift in federal policy would have a ripple effect on state scheduling policy.

3. It would transform the marijuana industry

By descheduling marijuana, marijuana enterprises would see substantial economic benefits. They would no longer run into challenges accessing financial tools like bank accounts, lines of credit, business loans, mortgages, etc. Currently, the Federal Reserve and financial regulations bar banks from working with organizations that traffic in illegal substances. Given marijuana’s scheduling status, those regulations hinder (some argue cripple) the marijuana industry, severely limiting growth and creating serious safety and security concerns associated with a cash-only business model. Washington Post’s Chris Ingraham noted the importance of this change and the added benefit of marijuana enterprises being able to access typical business tax benefits, as well. It would certainly translate into growth, profits, employment expansion, and reduced costs for the industry.

4. It would likely spur research

Grace Wallack and I noted in our recent paper that the categorization of marijuana as a Schedule I substance seriously hindered research on the medicinal benefits of the drug. In terms of access to product, licensure requirements, and ingrained cultural barriers, the scheduling status and the U.S. government’s historically unique treatment of cannabis created barriers to conducting research on the drug.

5. It would not legalize marijuana nationally

For all the talk about Bernie Sanders being a passionate socialist (some of that rhetoric coming from the candidate himself), his proposal is very small-government conservative. This congressional action would not lead to huge federally-owned marijuana grows and national marijuana dispensaries. The amendment to the Controlled Substances Act would simply reduce the federal role in the regulation and criminalization of marijuana, and leave greater discretion to states. More marijuana enterprises will surely pop up in more (new) states.

What we don’t know about Sanders’ descheduling proposal

6. What are the details of descheduling?

The chance of success for any policy proposal depends on the details, and in due deference to Sen. Sanders, we only know the broad outline of his new marijuana proposal. Until he issues a policy brief, a more detailed press release, or files legislation in the Senate, we are left to guess the specifics that fall under the broad heading of “descheduling.” What we do know is that descheduling would greatly reduce the federal government’s ability to regulate marijuana. Surely, Sen. Sanders does not want marijuana to be a wholly unregulated product, and so it will be interesting to see whether his bill sets up a federal regulatory framework, leaves all such issues up to the states, or forges some other regulatory alternative.

7. How does this law get passed?

At the federal level, marijuana reform supporters have had significant success over the past few years, particularly in the U.S. House. Some legislative reforms have even managed to pass into law, typically as riders to more significant legislation. Each of those efforts has been smaller or more targeted in nature—and moderate in effect. More significant, comprehensive proposals such as the CARERS Act have hit roadblocks in the legislative process. It is unclear what path to passage Sen. Sanders sees for a more aggressive and blunt policy reform. It will need to find 60 votes in the Senate to overcome a filibuster; it will need to be placed on the House calendar by a new Speaker of the House who has indicated (through rhetoric and a voting record) opposition to even medical marijuana reform; it will then need to pass the House of Representatives that has rejected or blocked even more moderate reform measures during this Congress; and it would need to be signed by a president whose public views on marijuana policy have not gone as far as this proposal. In that environment, Sanders’ plan seems to be a “hope raiser,” not a “policy changer.”

8. Would his marijuana reform ideas follow him to the White House?

Let’s assume Sanders’ legislative proposal fails to pass—a safe assumption given the barriers discussed above. Let’s further assume Sanders is elected president in 2016. Is this descheduling reform one that he would plan to pursue as president?

A President Sanders would be well within his authority to initiate the process to review cannabis’ scheduling classification, but using administrative authority to achieve full descheduling would be an uphill battle, requiring buy-in from various agency heads. And, as a new president, he would have the opportunity to select new administration officials who would be positioned to advance such a cause. Would he use this issue as a litmus test in selecting a new Attorney General, FDA Commissioner, DEA Administrator, and Secretary of Health and Human Services?

9. Will he pressure President Obama?

From his perch in the Senate and as a candidate for the White House, Sanders has a louder microphone than at any other time in his career. It is worth asking whether he will use that platform to push the president and other administration officials to support his proposal. Obama’s support could come through a commitment to sign it, efforts to pressure Congress to pass it, a willingness to allow it to be inserted as a rider into other legislation, etc.

10. Will Sanders go it alone in Congress?

It is unclear how effective Sen. Sanders will be at rounding up co-sponsors for this legislation. Co-sponsorship on many bills is hard to come by. That difficulty is enhanced for comprehensive, controversial, drastic policy reform. Ask lobbyists in the marijuana reform community and they will tell you that cosponsorship is critical and—depending on the reform proposal—can be hard to find. Presidential election years tend to make House members and Senators facing reelection more cautious and risk-averse, further complicating support. And frankly, few election-driven, majority members of a Republican-controlled Congress are looking for opportunities to work publicly with a self-described socialist—no matter a presidential candidate for the opposing party.

11. Will he change the Democratic debate?

Sanders’ proposal surges to the left of fellow Democratic presidential candidates Hillary Clinton and Martin O’Malley. Will Sanders use future debate stages, media appearances, and public events to push the Democratic field on the issue of marijuana reform? Will he motivate Clinton to clarify what has thus far been a vague stance on the issue or O’Malley to re-assess his comparatively moderate reform position (decriminalization + rescheduling)?

12. What motivated Sanders’ change of heart on marijuana policy?

Sanders often promotes his own policy consistency, particularly when contrasting himself with Clinton. He recently noted in an appearance on Charlie Rose, “there are real differences between Hillary Clinton and myself. I have been extremely consistent on my views for many, many years.” However, it’s not clear he has been consistent on marijuana policy, even over the past few months. In June, he dodged a question on legalization, saying of marijuana, “It’s not my thing…” and went on to voice a different concern: “If you talk to law enforcement folks, what they worry about is they see this as an entry level drug, which leads to coke, which leads to heroin.”

A few weeks ago, in the first Democratic debate, Sanders signaled a bit of issue evolution, saying that as a voter he would likely vote for a legalization initiative. In this week’s shift, he has staked out the most reform-oriented position on the issue in the 2016 field—and in his own career. Surely, the underlying issues he cites—arrest rates, incarceration rates, and racial justice—have not changed since June. What has changed is Sanders’ position on the issue. What is interesting now is if Sanders’ change in rhetoric will also change the conversation about marijuana reform in the presidential race, in the halls of Congress, and around dinner tables across America.

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http://www.brookings.edu/blogs/fixgov/posts/2015/10/20-medical-marijuana-barriers-to-research-kamarck?rssid=marijuana+legalization{FEFAC87C-174E-4034-BF9E-8BA502C8BABE}http://webfeeds.brookings.edu/~/118947327/0/brookingsrss/topics/marijuanalegalization~The-upside-down-world-of-marijuana-legalizationThe upside down world of marijuana legalization

Marijuana is being legalized in an upside down fashion. States are passing a wide variety of laws. There are states that tightly control the use of medicinal marijuana only, states that effectively decriminalize possession but don’t allow the sale of marijuana and states like Colorado and Washington that have fully permitted using, growing and selling. On the one hand, this is an admirable exercise in federalism, allowing different states with different political cultures to become the great “laboratories of democracy” that Supreme Court Justice Louis Brandeis applauded. On the other hand, the legalization process is moving ahead without important resources that only the federal government can bring to it.

Chief among these is the ability to do controlled, professional, scientific testing on drugs. This is a complex and expensive process that exists, for good reason, under federal oversight. Given the complexity and expense of the undertaking—and the need for uniformity in standards—it would make no sense for states to do their own drug testing and research. Today, 23 states and the District of Columbia allow the use of medical marijuana and yet, compared to other drugs, we know relatively little about the benefits and risks. Thus, as legalization expands, research on medical marijuana is critical. This research could also help create more effective regulation of recreational marijuana. Since it has been legal to buy marijuana, emergency room doctors in Colorado have seen an increase in visits from people who have smoked or eaten too much marijuana. Two factors seem to be behind this. First, this isn’t your father’s marijuana. Apparently, what’s being grown and sold today is much more potent than what was sold to the baby boomers in their college years. And second, the increased popularity of “edibles,” food such as brownies or cookies that have marijuana cooked into it, increases the time it takes to feel the effects, causing many people to simply eat too much.

All of this points to the need for more scientific testing of marijuana. And yet, as a new Brookings paper titled “Ending the U.S. government’s war on medical marijuana research” by scholars John Hudak and Grace Wallack argues, the necessary science of marijuana is not keeping up with the movement towards legalization. The problem starts with the designation of marijuana as a “Schedule I” drug, a designation reserved for drugs with no medicinal value. “The current Schedule I designation of cannabis,” they write, “in conjunction with the numerous additional, and unique institutional rules regulating the substance, creates a circular policy trap that hinders scientific research.” This means that for research to expand, the government would do well to “reschedule” marijuana as a “Schedule II” drug.

But even that would not spur the kind of research that will be needed as the movement-towards-legalization train leaves the station. Hudak and Wallack point to a wide variety of stumbling blocks; from the DEA-created monopoly that allows only one source for the production of marijuana for studies, to the “complex licensing matrix between DEA, FDA, and state law,” to the “bizarre legal environment” that surrounds marijuana today. Every year, more and more states are being added to the list of those that allow medical marijuana. And yet, the drug is being “approved” without enough science behind it.

Hudak and Wallack end their plea for stopping the government’s war on medical marijuana research by pointing out that this could be the ultimate “strange bedfellows” alliance. “Expanding research should be a cause championed by the most passionate pro-marijuana advocates as well as the most ardent drug warriors—and everyone in between,” they write. And they are right. No matter where you are on the spectrum between those who think it’s a valuable and harmless drug to those who think it's a dangerous “gateway” drug, given the recent legal trends it is hard to be against more research. Hudak and Wallack lay out a keen and sensible way of reforming the research laws to meet the reality of our time.

Authors

Marijuana is being legalized in an upside down fashion. States are passing a wide variety of laws. There are states that tightly control the use of medicinal marijuana only, states that effectively decriminalize possession but don’t allow the sale of marijuana and states like Colorado and Washington that have fully permitted using, growing and selling. On the one hand, this is an admirable exercise in federalism, allowing different states with different political cultures to become the great “laboratories of democracy” that Supreme Court Justice Louis Brandeis applauded. On the other hand, the legalization process is moving ahead without important resources that only the federal government can bring to it.

Chief among these is the ability to do controlled, professional, scientific testing on drugs. This is a complex and expensive process that exists, for good reason, under federal oversight. Given the complexity and expense of the undertaking—and the need for uniformity in standards—it would make no sense for states to do their own drug testing and research. Today, 23 states and the District of Columbia allow the use of medical marijuana and yet, compared to other drugs, we know relatively little about the benefits and risks. Thus, as legalization expands, research on medical marijuana is critical. This research could also help create more effective regulation of recreational marijuana. Since it has been legal to buy marijuana, emergency room doctors in Colorado have seen an increase in visits from people who have smoked or eaten too much marijuana. Two factors seem to be behind this. First, this isn’t your father’s marijuana. Apparently, what’s being grown and sold today is much more potent than what was sold to the baby boomers in their college years. And second, the increased popularity of “edibles,” food such as brownies or cookies that have marijuana cooked into it, increases the time it takes to feel the effects, causing many people to simply eat too much.

All of this points to the need for more scientific testing of marijuana. And yet, as a new Brookings paper titled “Ending the U.S. government’s war on medical marijuana research” by scholars John Hudak and Grace Wallack argues, the necessary science of marijuana is not keeping up with the movement towards legalization. The problem starts with the designation of marijuana as a “Schedule I” drug, a designation reserved for drugs with no medicinal value. “The current Schedule I designation of cannabis,” they write, “in conjunction with the numerous additional, and unique institutional rules regulating the substance, creates a circular policy trap that hinders scientific research.” This means that for research to expand, the government would do well to “reschedule” marijuana as a “Schedule II” drug.

But even that would not spur the kind of research that will be needed as the movement-towards-legalization train leaves the station. Hudak and Wallack point to a wide variety of stumbling blocks; from the DEA-created monopoly that allows only one source for the production of marijuana for studies, to the “complex licensing matrix between DEA, FDA, and state law,” to the “bizarre legal environment” that surrounds marijuana today. Every year, more and more states are being added to the list of those that allow medical marijuana. And yet, the drug is being “approved” without enough science behind it.

Hudak and Wallack end their plea for stopping the government’s war on medical marijuana research by pointing out that this could be the ultimate “strange bedfellows” alliance. “Expanding research should be a cause championed by the most passionate pro-marijuana advocates as well as the most ardent drug warriors—and everyone in between,” they write. And they are right. No matter where you are on the spectrum between those who think it’s a valuable and harmless drug to those who think it's a dangerous “gateway” drug, given the recent legal trends it is hard to be against more research. Hudak and Wallack lay out a keen and sensible way of reforming the research laws to meet the reality of our time.

Authors

]]>
http://www.brookings.edu/research/papers/2015/10/20-war-on-marijuana-research-hudak-wallack?rssid=marijuana+legalization{08181411-6D32-4ED7-B649-EF76100FCC33}http://webfeeds.brookings.edu/~/156943253/0/brookingsrss/topics/marijuanalegalization~Ending-the-US-government%e2%80%99s-war-on-medical-marijuana-researchEnding the U.S. government’s war on medical marijuana research

Of all the controlled substances that the federal government regulates, cannabis is treated in unique ways that impede research. Specifically, the U.S. government has held back the medical community's ability to conduct the type of research that the scientific community considers the experimental gold standard in guiding medical practice. Thus, the use of cannabis for medical treatment is happening in states based largely on anecdotal or limited science. In many cases, patients and doctors operate according to a learn-as-you-go approach—a situation that is inexcusably the fault of federal policies failing to keep pace with changing societal views and state-level legal landscapes.

In “Ending the U.S. government's war on medical marijuana research,” authors John Hudak and Grace Wallack argue that it is time for the federal government to recognize the serious public policy risks born from limited medical, public health, and pharmaceutical research into cannabis and its use. As medical marijuana becomes increasingly accessible in state-regulated, legal markets, and as others self-medicate in jurisdictions that do not allow the medical use of cannabis, it is increasingly important that the scientific community conduct research on this substance. However, statutory, regulatory, bureaucratic, and cultural barriers have paralyzed science and threatened the integrity of research freedom in this area.

Hudak and Wallack explore the specific federal government policies that limit medical marijuana research and detail the consequences of those policies for the medical community and for public policy. They also examine some of the existing proposals that seek to ameliorate these challenges, concluding that some are meaningful and would make substantive changes that advance medical research, while others are narrow-sighted, misunderstood, and fail to provide the type of large-scale change necessary to achieve reformers’ desired goals. Analyzing the efficacy of one often-proposed solution, the rescheduling of marijuana from a Schedule I narcotic, Hudak and Wallack argue that this specific policy proposal is limited in its ability to advance constructive medical research.

Ultimately, the authors recommend a more comprehensive set of policy reforms that will liberate the medical community in its pursuit of research into marijuana.

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Authors

Of all the controlled substances that the federal government regulates, cannabis is treated in unique ways that impede research. Specifically, the U.S. government has held back the medical community's ability to conduct the type of research that the scientific community considers the experimental gold standard in guiding medical practice. Thus, the use of cannabis for medical treatment is happening in states based largely on anecdotal or limited science. In many cases, patients and doctors operate according to a learn-as-you-go approach—a situation that is inexcusably the fault of federal policies failing to keep pace with changing societal views and state-level legal landscapes.

In “Ending the U.S. government's war on medical marijuana research,” authors John Hudak and Grace Wallack argue that it is time for the federal government to recognize the serious public policy risks born from limited medical, public health, and pharmaceutical research into cannabis and its use. As medical marijuana becomes increasingly accessible in state-regulated, legal markets, and as others self-medicate in jurisdictions that do not allow the medical use of cannabis, it is increasingly important that the scientific community conduct research on this substance. However, statutory, regulatory, bureaucratic, and cultural barriers have paralyzed science and threatened the integrity of research freedom in this area.

Hudak and Wallack explore the specific federal government policies that limit medical marijuana research and detail the consequences of those policies for the medical community and for public policy. They also examine some of the existing proposals that seek to ameliorate these challenges, concluding that some are meaningful and would make substantive changes that advance medical research, while others are narrow-sighted, misunderstood, and fail to provide the type of large-scale change necessary to achieve reformers’ desired goals. Analyzing the efficacy of one often-proposed solution, the rescheduling of marijuana from a Schedule I narcotic, Hudak and Wallack argue that this specific policy proposal is limited in its ability to advance constructive medical research.

Ultimately, the authors recommend a more comprehensive set of policy reforms that will liberate the medical community in its pursuit of research into marijuana.